Criminal Law and Philosophy

, Volume 8, Issue 2, pp 431–447 | Cite as

Could the Presumption of Innocence Protect the Guilty?

  • Patrick Tomlin
Original Paper


At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered.


Presumption of innocence Standard of proof Sentencing Tariff-setting 



My interest in the presumption of innocence, and its scope and grounds, stems from my involvement with the AHRC-funded Preventive Justice project (ID: AH/H015655/1), which I worked on at the University of Oxford with Andrew Ashworth and Lucia Zedner. I am grateful to the AHRC for funding the project, and to Andrew and Lucia for help, encouragement, support and discussion. This paper follows on from my previous paper ‘Extending the Golden Thread?’, and so I am (again) grateful to all those to whom I was grateful in that paper. The present paper has further benefitted from discussion at the workshop in Aberdeen for which it was written and I would like to thank all the participants for helpful questions and comments, and Antony Duff, Liz Campbell and James Chalmers for organising the event. I am especially grateful to Duff for helpful written comments.


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Copyright information

© Springer Science+Business Media Dordrecht 2012

Authors and Affiliations

  1. 1.Department of Politics and International RelationsUniversity of ReadingWhiteknights, ReadingUK

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