The Presumption of Innocence and the Human Rights Act
| Author | Victor Tadros,Stephen Tierney |
| Published date | 01 May 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00493.x |
| Date | 01 May 2004 |
The Presumption of Innocence and the
V|ctor Tadros and Stephen T|erney
n
There has recently been a proliferation of case law dealing with potential inroads into the pre-
sumption of innocence in the crimi nal lawof England andWales,in the lightof article 6(2) of the
European Convention on Human Rights. This article is concerned with the nature of the pre-
sumption of innocence. It considers twocentral issues. The ¢rst is how the courts should address
the question of when the presumptionof in nocence is interferedwith. The second is the extent to
which interference with the presumptionof i nnocence may be justi¢ed on the grounds of pro-
portionality. It is argued that the courts have notdeveloped the appropriate concepts and princi-
ples properly toaddress these questions.
INTRODUCTION
1
The presumption of innocence haslong been regardedas fundamental to protect-
ing accused persons from wrongful conviction. The basic principle is that the
accused is to be considered innocent until proven guilty of a criminal o¡ence.
The reasonwhy this principleis considered fundamental is that it is generally seen
as better for the guilty to go free than the innocent be convicted. This is some-
times articulated, though inaccurately, as the ‘10:1 principle’: it is as bad for one
innocent person tobe convicted of a criminal o¡ence as it is for ten guilty people
to go free. This is an erroneous way of expressing the more complex idea that a
defendant ought on ly tob e convicted of a criminal o¡e nce if it is known
2
that he is
guilty of that o¡ence.
English criminal law has generally taken this principle to entail that the ac-
cused must be treated as innocent until proven guilty beyond reasonable doubt
of all substantive questions that require to be answered in order to convict
him of the criminal o¡ence with which he is charged. Consequently, from the
n
Universityof Edinburgh. Many thanks to Ian Leigh for thoughtful commentsand suggestions.
1 ‘If any error is to be made in the weighing of the scales of justice it should be to the e¡ect that the
guilty go free rather than that an innocent person should be wrongly convicted.’ RvLambert [2001]
UKHL 37 at 156 per Lord Clyde; RvLambert [2002] 2 AC 545 H L.
2 Knowing pdoes not imply that the knower is 100per cent certai n of p.I may know that the worldis
round without being 100 per cent certain that the world is round. Knowledge is probablybetter
seen in qualitative rather than quantitative terms (see, for example, J. McDowell,‘Knowledge by
Hearsay’in Meaning, Knowledge and Reality (Cambridge, MA: Harvard University Press, 1998), and
it is for this reason that the statistical modelought only to be thought of as a rule of thumb.Con-
sider a football stadium i n which there are 1000 people. Only ni nety people have paid the admis-
sion fee.The rest have jumped the fence.There is no further evidence that can be discovered foror
against any particular person having a ticket. Surely it is wrong to convict all of the people i n the
stadium even thoughthe 10:1 principle has been satis¢ed. It is also worthnoting that a person may
be justi¢ed in claiming that he k nowssomething to be the case when he i s in fact wrong. Hence,
the standard of knowledgedoes not entail that there will be no wrongful convictions.
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(2004) 67(3) MLR 402^434
presumption of innocence is derived a more particular principle concerning the
burden of proof. In general at least, the presumption of innocence is to be guar-
anteed bythe burden of proof beingplaced upon the prosecution to determineall
elements of a criminal o¡ence, and to show that the accused does not fall within
any defences that he might have; furthermore, the prosecution must determine
those eleme nts beyond reaso nable doubt.
Since the coming into force of the Human Rights Act 1998 (the HRA), the
presumption of innocence has been reinforced in domestic law by article 6(2) of
the European Convention on Human Rights (the ECHR), whereby everyone
charged with a criminal o¡ence ‘shall be presumed innocent until proved guilty
according to law.’Generally the European Court of Human Rights(ECtHR) has
endeavoured implicitly or explicitly to separate the proced ural protections o¡ered
to the criminal suspect from the prerogative of the Member State to de¢ne the
substantive termsof its own criminal law.
3
On its surfacearticle 6(2) appears clearly
to be concerned with procedure. A person must be treated as innocent until
proved guilty according to law, and it might be thought that the most natural inter-
pretation of this principle is that the presumption of innocence protects an indi-
vidual against laws which fail to respect evidential and perhaps other procedural
requirements that surround existing criminal o¡e nces, without touching the
content of such o¡ences. On this reading, article 6(2) has no implications for the
substance of criminal o¡ences but only for the evidential requirements that
govern the substance of those o¡ences. The ECHR doe s conta in rights which do
have implications for the substance of criminal law, such as the protection of
freedomof expression enshrinedin article 10 and of freedom of assemblyin article
11. But, on this reading, article 6(2) does not have those kinds of implications. Its
implications are purely procedural. It is our purpose to challenge this reading.
The ECtHR addressed the operation of such presumptions in Salabiaku v
France.
4
The ECtHR accepted that: ‘Presumptions of fact and lawoperate in every
legal system. Clearly, the Convention does not prohibit such presumptions in
principle. It does, however, require the Contracting States to remain within
certain limits in this respect as regards criminal law.’
5
Addressing these limits, the
Court ¢rst of all con¢rmed that the duty on Member States is not merely one of
judicial impartiality in the conduct of legal proceedings. Otherwise,‘the national
legislature would be free to strip the trial court of any genuine power of assess-
ment and deprive the presumption of innocence of its substance.’ In rejecting the
notion that the presumption of innocence can be stripped down to the formality
of the court process, the Court then ¢xed upon the phrase ‘according to law’,
which appears at the end of article 6(2), and concluded that these words should
not be ‘construed exclusively with reference of (sic) domestic law.’ Instead the
objectand purpose of article 6 as awhole must be taken intoaccount; this purpose
is to protect ‘the right to a fair trial and in particular the right to be presumed
3 The ECtHR has held that it is for Member States to determine the content of criminal law unless
this had an impact on substantive guarantees under the Convention. Salabiaku vFrance (1988) 13
EHRR 379.
4 n 3 above.
5ibid para 28.
V|ctor Tadrosand Stephen T|erney
403rThe Modern LawReview Limited 2004
innocent’, a commitment which enshrines ‘the fundamental principle of the rule
of law’.This passage in Salabiaku is tantalising. One reading of this statement is
that the ECtHR is prepared to acknowledge that article 6(2) limits the way in
which a criminal o¡ence can be de¢ned. However, the Court did not elaborate
on whatthe ‘substantive’ content of article 6(2)might be. Instead it has lefta vague
test which requires that Member States con¢ne presumptions of fact and law
‘within reasonable limits which take into account the importance of what is at
stake and maintain the rights of the defence.’
This ‘reasonable limits’ test has been taken by the courts of England andWales
to require a balancing exercise between the egregiousness of the evil against
which the law is inte nded to protect and the due process right s of the accused
person.This balancingtest was ¢rst articulated by LordHope in his seminal judg-
ment in Kebilene:‘Asamatterofgeneralprincipleya fair balance must be struck
between the demands of the general interest of the community and the protec-
tion of the fund amental rights of the individualy’
6
In this way the ECtHR’s
reference to ‘the importance of what is at stake’ seems to have translated into
English lawas ‘the demands of the general interest of the community’.
Since Kebilene, the application of this balancing test to article 6(2) hasbeen de-
veloped in both Englis h and Scots
7
law, with the most extensive development
being o¡ered by the House of Lords in RvLambert,
8
which has in turn led to a
spate of further cases, most prominently Sheldrake vDPP.
9
In that case, the Divi-
sional Court outl ined the way in which article 6(2) claims ought to be structured
by responding to four questions.
The ¢rst question it addressedwas whether a shifti nthe burden of proof in fact
interferes with the presumption of innocence. As we shall see, this involves an
investigation which goes beyond the question of whether there was a shift in the
burden of proof in any elementof o¡ence or defence. If that question is answered
in the a⁄rmative, the second question is whether there is a justi¢cation for some
interference with the presumption of innocence. This question is in part to be
answered by reference to whether there is a particular problem posed by placing
the burden of proof entirely on the prosecution, whether the element of the of-
fence was something within the particular knowledge of the accused, and so on.
As we shall see, this question more or less blends in with a third question.
If the answer to the second question is also a⁄rmative, the third question is
whether that interference is proportionate. This third question is controversial. It
appeared to Clarke LJ in Sheldrake that the third question, while addressed in the
speeches of Lord Steyn and Lord Hope in Lambert, was not a part of the judge-
ments of Lord Slynn and Lord Clyde. According to the latter two judges, if there
is an interference with the presumption of innocence, no further question of pro-
porti onalit y needs to be a nswered. However, i n the judgeme nt of Clar ke LJ, the
proper interpretation to be given to Lambert was that the proportion ality issue
6RvDirector of PublicProsecutions, Ex p Kebilene[200 0] 2 AC326, 384.
7HMA vMcIntosh 2000 SLT 1233, [2001] UKPC D1; AvScottish Ministers 2000 SLT 873, [2001]
UKPC D5.Our concern in this article is with English law.
8 n 1 above.
The Presumption of Innocence and the Human Rights Act
404 rThe Modern LawReview Limited 2004
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