Threats to the Presumption of Innocence in Irish Criminal Law: An Assessment

AuthorClaire Hamilton
DOI10.1350/ijep.2011.15.3.377
Published date01 July 2011
Date01 July 2011
Subject MatterArticle
THREATS TO THE PRESUMPTION OF INNOCENCE IN IRISH CRIMINAL LAW
Threats to the
presumption of
innocence in Irish
criminal law: an
assessment
By Claire Hamilton*
Lecturer in Criminology, Dublin Institute of Technology
Abstract The existence of four contemporary threats to the presumption of
innocence in England and Wales has been posited by Ashworth. The aim of this
article is to take stock of the law in the Republic of Ireland impacting upon this
cornerstone principle of Irish criminal law. The article explores Ashworth’s
arguments in more detail and examines the justifications for the presumption
of innocence generally and in an Irish context. The precise meaning and ambit
of the presumption in Irish law is examined before proceeding to consider the
case law and legislation which may have impacted on its scope and practical
import for the accused. Several, albeit mixed, conclusions are drawn about the
relative health of the presumption in Ireland.
Keywords Presumption of innocence; Ireland; Reverse burdens
he existence of four contemporary threats to the presumption of
innocence in England and Wales has been posited by Ashworth.1In his
examination of legislation and case law impacting on the presumption,
he concludes ‘generally recognised as a fundamental right it may be, but its
precise significance for the defendant is so contingent as to raise doubts’.2In light
of this rather depressing diagnosis, the aim of this article is to attempt to take
stock of the law in the Republic of Ireland impacting upon the presumption of
doi:10.1350/ijep.2011.15.3.377
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 181–206 181
1 A. Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 E&P 241.
2 Ibid. at 278.
T
* Email: chamilton@dit.ie.
innocence, arguably one of the most important principles of Irish criminal law.
The first part of this article explores Ashworth’s arguments in more detail and
examines the justifications for the presumption of innocence generally and in an
Irish context. An effort will then be made to establish the precise meaning of the
presumption in Irish law and its ambit, before proceeding in the final part to
consider the case law and legislation which may have impacted on its scope and
practical import for the accused. Based on this analysis some conclusions will be
drawn about the relative health of the presumption in Ireland.
Whither the ‘golden thread’? Confinement; erosion; evasion; side-stepping
The law is replete with encomia to the presumption of innocence. In the United
States, the presumption has been called ‘a general principle of our political
morality’,3‘as irresistible as the heavens till overcome’,4‘a cornerstone of
Anglo-Saxon justice’5and a ‘bedrock, axiomatic and elementary principle’ whose
‘enforcement lies at the foundation of the administration of our criminal law’.6
Every law student is also familiar with the poetic flourish of Lord Sankey in
Woolmington vDPP7on the burden of proof: ‘Throughout the web of the English law
one golden thread is always to be seen, that it is the duty of the prosecution to
prove the prisoner’s guilt’. The Irish superior courts too have acknowledged the
principle as a ‘fundamental postulate’ of the criminal law which is constitu-
tionally protected as part of the right to fair trial.8Indeed, the Supreme Court
famously held in People (AG) vO’Callaghan9that the courts owe more than verbal
respect to the principle, being ‘a very real thing’. Yet, in a legal system which now
accommodates preventive detention, the use of silence as evidence against an
accused and significantly increased police powers among other developments, the
‘reality’ of the presumption is increasingly placed in question. There is a danger
that as Lacey et al.10 have argued:
We take [the presumption of innocence] so much for granted that
even the widespread institutional and social practices which sit
unhappily with it (the treatment of suspects at police stations; use of
182 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THREATS TO THE PRESUMPTION OF INNOCENCE IN IRISH CRIMINAL LAW
3 W. Twining, Rethinking Evidence: Exploratory Essays (Cambridge University Press: Cambridge, 1990)
208.
4 D. J. B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Little Brown: Boston, 1898) 553.
5 H. J. Abraham, The Judicial Process (Oxford University Press: New York, 1993) 96.
6Coffin vUnited States 156 US 432 at 453 (1895).
7 [1935] AC 462.
8O’Leary vAttorney General [1993] 1 IR 102.
9 [1966] IR 501.
10 N. Lacey, C. Wells and D. Meure, Reconstructing Criminal Law (Weidenfeld and Nicolson: London,
1990) 155.

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