Due to terrorist threats and reports of serious crimes, governments are under pressure to be seen to be addressing these issues. Ashworth points out that this can be at the expense of considerations of constitutional rights, such as the presumption of innocence (2006 p.276). As Ferzan comments, the requirement that the State treats its citizens ‘with a degree of trust unless and until they are found guilty of a crime’, leads to concerns that treating groups of people with suspicion goes against the constitution (2014 p.515). A definition of the presumption of innocence is that it is the prosecution who has the responsibility to prove that the accused has committed the elements of the offence beyond reasonable doubt (Ashworth 2006 p.258). Ferzan makes a distinction between probatory presumption of innocence whereby the jury simply starts with the assumption that there is no evidence of guilt; and material presumption of innocence where the jury begins with the assumption that the accused did not commit the act (2013 p.512).
In the case of the privilege against self-incrimination and the right to silence, these can be seen as separate to the presumption of innocence, in that the right to silence involves no negative inferences being made from the silence of the accused, where the latter concerns the need for the prosecution to prove the guilt of the defendant and not how this guilt was proved. Ashworth however, points out that if a law allows for adverse inferences being made from a defendant’s silence this can diminish the prosecution’s burden of proof. Furthermore, the defendant’s refusal to answer questions was at a previous stage of the investigation when the case against the accused was yet to be made and when there was a considerable difference in power between the suspect and the police. For this reason there is a relationship between these rules (2006 p.256)
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The presumption of innocence is contained in the ICCPR Article 14(2) "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law". The prosecution has the responsibility of proving the charge beyond reasonable doubt and defendants have the right to be treated in accordance with this principle. Mahoney comments that this acts as a procedural guideline for courts and is also important in determining how evidence is collected. It places the burden of proof squarely onto the prosecution and gives the benefit of the doubt to the accused (2004 p.120). However, as noted by the Human Right Committee in General Comment 1331 , the concept of presumption of innocence is often accompanied by conditions that render it ineffective or expressed ambiguously. This is why it is important for States to prohibit any methods of investigation that could be construed as putting undue pressure on a suspect to make a confession or testify against him or herself. A suspect’s guilt can only presumed when the charge has been proved beyond any reasonable doubt and a final judgement has been made. It is the responsibility of the State to prove guilt and, as such, the bias is in favour of the suspect because innocent people must be protected from wrongful conviction, even if some guilty ones might escape being convicted (Naughton 2011 p.41). In matters of granting bail or remanding in custody prior to trial, European human rights law states that a presumption of the innocence of the suspect must be made and strong reasons have thus to be given for any deprivation of liberty as it is the duty of the State to acknowledge that the suspect has a legal status of innocence at every stage of legal proceedings before they are convicted (Ashworth 2006 p244).
Following from this, it appears that the presumption of innocence is not just about the burden of proof being on the prosecution, but that all pre-trial procedures should be conducted as if the suspect were innocent. Ashworth notes that it is the latter that underpins the restraints on how the suspect can be treated during the investigation (2006 p.243) Ferzan comments that as it is only at trial that evidence is weighed up so as to determine guilt the defendant, the treatment of the suspect as innocent is a fundamental part of due process (2013 p.514).
31 Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 21st
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The rationale behind the presumption of innocence has been classified by Ashworth as follows: Firstly, in the matter of censure and punishment, being wrongly convicted is ‘a deep injustice and a substantial moral harm’ (2006 p.248) and avoidance of this underlies the importance of having a fair trial. As it is impossible to remove any possibility of error, there are instead procedural procedures, including the presumption of the suspect’s innocence and the placing of the burden of proof on the prosecution. Linked to this is the fact that it is very difficult to establish what the truth is, especially as evidence is often given much later and humans are often fallible. Thus, when there is a choice between acquittal of the innocent and convicting the guilty, the justice system should lean towards the former. No one, including the victims of crime has an interest in convicting the innocent. Thirdly, the State’s respect for the dignity and autonomy of the individual should be paramount in a democratic society. Thus the State needs to show that it has acceptable reasons for interrogating someone and for charging them with an offence. It should not be the responsibility of the citizen to answer charges until the prosecution has produced sufficient evidence to make a case; nor should they be liable to conviction until their guilt is proved beyond reasonable doubt. Finally, the prosecution having to prove guilt beyond reasonable doubt reinforces the values described above. Making the level of proof ‘beyond reasonable doubt’ highlights that here must be justification for public censure and punishment, an assurance as far as possible that an innocent person has not been wrongly convicted given the fragility of much evidence (ibid p.248-51).
The Human Rights Commission (General Comment 13, para 7) suggest that presumption of innocence can be protected by making sure public officials such as the police, prosecutors and judges do not make statements about an individual’s guilt if he or she has not been convicted, although the public can be given the names of suspects and the facts of the case. Another way to protect the presumption of innocence is to ensure that the burden of proof is on the prosecution, in other words, the suspect should not have to prove their innocence. This is encapsulated by Article 6 (2) of the ECHR which stipulates: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". The presumption of innocence is also reflected in how a suspect is presented (Naughton 2011 p.42). The suspect or person who is accused should
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be treated gently without being routinely caged or shackled, and should be allowed to wear civilian clothes. If there is a need to handcuff the suspect, for example to prevent self-harm himself or escape, then his or her right will not violated.
Naughton points out that there is a difference between how the presumption of innocence operates in theory and what actually happens. Innocent people are convicted of crimes they did not commit as sometimes evidence which is not very reliable is allowed by the court. For example, in the case of the Guildford Four in England and Wales, four innocent people were convicted for a crime that they did not do, and their right to the presumption innocence was totally neglected. Furthermore, because the defence is not as richly resourced as the prosecution it is not always well-equipped to fight for the accused. This situation begs the question of how wrongful convictions can be effectively avoided (2011 pp.53-4).
To sum up, the presumption of innocence is justified as it operates in a criminal justice system in which the State can exert vast powers over the individual. It is necessary in a system where the individual has little power against the State, given the great imbalance of resource and where the trial system is understood to be fallible. It is a fundamental right that the innocent citizen should be protected against wrongful accusation, conviction, punishment and censure. Individual autonomy and dignity demands that the suspect is treated as innocent until proven guilty.