Abstract
This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility with European human rights law and general principles of criminal jurisprudence.
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Notes
Unattributed page references in the text and ensuing notes relate to this volume.
Woolmington v DPP [1935] AC 462, 481–482, HL.
More ambitiously, the presumption of innocence as a doctrine of political morality can be seen to ground principles of criminal legislation, both in terms of institutional constraints on (legitimate) legislative process and as a regulative principle governing the scope and content of (legitimate) substantive criminal law. See, e.g., Tomlin (2013).
Blackstone (1765–1769, bk IV, ch 27) famously wrote that, ‘all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer’. What this is supposed to imply for the design and conduct of criminal proceedings is highly contentious.
Allenet de Ribemont v France (1995) 20 EHRR 557; Fatullayev v Azerbaijan (2011) 52 EHRR 2; Matijasevic v Serbia (2009) 48 EHRR 38; Ismoilov v Russia (2009) 49 EHRR 42; Böhmer v Germany (2004) 38 EHRR 19; Y v Norway (2005) 41 EHRR 7.
Minelli v Switzerland (1983) 5 EHRR 554; Geerings v Netherlands (2008) 46 EHRR 49; Capeau v Belgium (2008) 46 EHRR 25; Sekanina v Austria (1994) 17 EHRR 221. Cf. AL v Germany (2006) 42 EHRR 10.
E.g. Ashendon v United Kingdom (2012) 54 EHRR 13; Hussain v United Kingdom (2006) 43 EHRR 22; Fashanu v United Kingdom (1998) 26 EHRR CD217. The privilege against self-incrimination is regarded by Strasbourg as ‘closely linked to the presumption of innocence’: Saunders v United Kingdom (1996) 23 EHRR 313, [68]; Condron v United Kingdom (2001) 31 EHRR 1. But cf. O’Halloran and Francis v United Kingdom (2008) 46 EHRR 21.
Cf. Lord Hoffmann’s blunt advice in R v G [2009] 1 AC 92, [2008] UKHL 37, [5]–[6].
Critics such as Ashworth (2012) have identified a propensity for general, at-large ‘balancing’ as a pervasive weakness of the European Court of Human Rights’ Article 6 jurisprudence.
As elucidated, e.g., in Taxquet v Belgium (2012) 54 EHRR 26 (GC), [29]. The traditional criminal law standard of proof, beyond reasonable doubt, is English law’s translation of the very same in dubio pro reo principle, which is also firmly entrenched in Strasbourg jurisprudence: Barberà, Messegué and Jabardo v Spain (1989) 11 EHRR 360.
Quoting Healy (1987, p. 365).
Also p. 27 (‘instrumental in preventing the conviction and punishment of the innocent’).
But cf. Berman (2011).
However, the presence of lay jurors rather than orality per se may be more significant in this regard.
A potentially serious source of tension with European fair trial norms: cf. Taxquet v Belgium, (2012) 54 EHRR 26 (GC), dissected by Roberts (2011b).
Al-Rawi v Security Service [2012] 1 AC 531, [2011] UKSC 34.
Youth Justice and Criminal Evidence Act 1999, s.25; Children and Young Persons Act 1933, s.37.
Coroners and Justice Act 2009, ss. 86–96.
Essentially, a pithy restatement of the ‘right to fair trial’ in international human rights law: cf. International Covenant on Civil and Political Rights, Art 14; ECHR, Art 6.
Doorson v Netherlands (1996) 22 EHRR 330; SN v Sweden (2004) 39 EHRR 13. See Roberts and Zuckerman (2010, ch. 10).
The debate is briefly summarised by Roberts and Zuckerman (2010, pp. 283–288).
R v G [2009] 1 AC 92, HL; R v Daniel [2003] 1 Cr App R 99, CA, [34]; Barnfather v Islington Education Authority [2003] 1 WLR 2318, [2003] EWHC 418 (Admin).
But see Tadros (2007) for more nuanced elucidation of a ‘substantive’ approach.
Albeit still insufficiently reductionist for some: cf. Hamer’s (2011, p. 419) harsh complaint that ‘Stumer seemingly sees no virtue in analytic simplicity’.
R v Chaulk [1990] 3 SCR 1303. However, the traditional common law reverse onus is effectively preserved in Canada by the general saving clause in s.1 of the Canadian Charter of Rights and Freedoms. There is no parallel jurisdiction applicable to Article 6(2) ECHR.
See e.g. Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951,967–973, PC; R v Falconer [1990] HCA 49; (1990) 171 CLR 30 (High Court of Australia); Lilburn v HM Advocate [2011] HCJAC 41, 2012 JC 150, [6]; HM Advocate v Blake 1986 SLT 661 (Scottish High Court of Justiciary); Clark v Arizona, 548 US 735, 126 S Ct 2709 (2006); Leland v Oregon, 343 US 790; 96 L Ed 1302 (1952) (US Supreme Court) (‘In all English-speaking courts, the accused is obliged to introduce proof if he would overcome the presumption of sanity’); New Zealand Law Commission (2010, ch. 7) (also reviewing relevant jurisprudence in Australia and Canada).
H v United Kingdom, App No. 15023/89, Commission Admissibility Decision, 4 April 1990; Robinson v United Kingdom, App No. 20858/92, Commission Admissibility Decision, 5 May 1993 (extending the analysis to the reverse onus defence of diminished responsibility provided by the Homicide Act 1957, s.2).
Cf. Attorney General’s Reference (No 1 of 2004); R v Edwards; R v Denton and Jackson; R v Hendley; R v Crowley [2004] 1 WLR 2111, [2004] EWCA Crim 1025, [12]–[14], [130]–[131]; R v Lambert; R v Ali; R v Jordan [2002] QB 1112, CA.
See e.g. R v Roach [2001] EWCA Crim 2698.
McNaghten's Case (1843) 10 Cl. & Fin. 200, HL; R v Burgess [1991] 2 QB 92, CA.
Trial of Lunatics Act 1883, s.2, as amended by Criminal Procedure (Insanity) Act 1964, s.1; R v Antoine [2001] 1 AC 340, HL. Stumer (p. 185) twice misstates the verdict in the old common law idiom of ‘guilty but insane’. Although this might be nit-picking over an innocent slip of the keyboard—the verdict is correctly described elsewhere—these lapses seemingly betray a general inattentiveness to the intimate connection between legislative drafting and the communicative messages in criminal verdicts.
Bratty v Attorney General for Northern Ireland [1963] AC 386, 416, HL. More recently, see R v Costantini [2005] EWCA Crim 821, [14] (directly linking the reverse onus defence to the legal presumption of sanity).
Trial judges may direct the jury on insanity against defence counsel’s submissions only in ‘exceptional and very rare’ circumstances, essentially where insanity has effectively arisen on the facts and cannot sensibly be ignored: R v Dickie (1984) 79 Cr App R 213, 218, CA; R v Thomas (Sharon Andrina) [1995] Crim LR 314, 1994 WL 1061998, CA.
‘[W]e can find no precedent upon which we should be inclined to rely for assuming that the prosecution has such a right.…. Fairness dictates that a defendant or those representing him should have an opportunity of deciding whether it is desirable to raise the issue of insanity’: R v Dickie (1984) 79 Cr App R 213, 218, 220, CA. The same rule applies in New Zealand: R v Green (1993) 9 CRNZ 523 (CA). But see R v Bastian [1958] 1 WLR 413, CCA (suggesting that the prosecutor is entitled to argue insanity if the defence has already raised diminished responsibility).
Stumer (p. 185) (mis)characterises these pragmatic considerations as the ‘principal justification given for the reversal of the burden of proof’ in relation to insanity defences.
Especially if a (sufficiently robust) evidential burden of production would suffice instead (see e.g. Jones 1995).
Substantive conceptions of the presumption of innocence achieve more traction in constitutional systems incorporating substantive judicial review: cf. Dripps (1987), Michaels (1998). However, these are fundamentally institutional arguments: they do not tie juridical conceptions of the presumption of innocence to the best, pre-institutional, trans-jurisdictional moral theory of criminal liability.
The phrase ‘affirmative defence’, I now see, is equivocal in the following way: whilst some affirmative defences are legitimately onus-reversing (on my account), others plainly do and should impose only burdens of production. In previous writings I too readily assumed this important distinction to be obvious: cf. Hamer (2011, p. 419).
Also see Sullivan (2005, p. 213), contending that my conception of ‘the gravamen of the offence’ in Kebilene ‘is untenable’. But I do not have any conception of the ‘gravamen’ of any offence; I regard this terminology as an entirely gratuitous and misleading doctrinal heresy. Tenable or otherwise, the conception of ‘gravamen’ was the courts’, not mine.
Cf. Roberts (2005, pp. 178, 192): ‘legislation is enacted within a peculiar institutional framework of legal rules, informal conventions, occupational cultures, and reciprocal expectations that are in many ways more highly evolved and exquisitely mannered than the conventions of ordinary conversation’.
R v Hunt [1987] AC 352, HL.
R v DPP, ex p. Kebilene [2000] 2 AC 326, DC and HL.
R v Hunt [1987] AC 352, 374, per Lord Griffiths. Also Lord Ackner, ibid. 379–380.
E.g. R v Johnstone [2003] 1 WLR 1736, [2003] UKHL 28; Attorney General’s Reference (No 4 of 2002) [2005] 1 AC 264, [2004] UKHL 43; and DPP v Wright (Anthony) [2009] 3 All ER 726, [2009] EWHC 105 (Admin) all, for different reasons, propounded controversial statutory interpretations which were not readily predictable in advance of the courts’ pronouncements.
R v G [2009] 1 AC 92, [2008] UKHL 37; G v United Kingdom (2011) 53 EHRR SE25, [26]–[27].
Any example could be challenged on its merits, since these determinations are inherently controversial. But if forced to stick my neck out, I would say that, e.g., R v Chargot Ltd [2009] 1 WLR 1, [2008] UKHL 73; L v DPP [2001] Cr App R 420, DC; R (Griffin) v Richmond Magistrates’ Court [2008] 1 WLR 1525, [2008] EWHC 84 (Admin); and R v Williams (Orette) [2013] 1 Cr App R 11, [2012] EWCA Crim 2162, all fall into this category.
This is the best rationalisation (if any exists) of cases in which the court chooses to depart from orthodox readings of legislative history: see e.g. R v Webster [2011] 1 Cr App R 16, [2010] EWCA Crim 2819; Attorney General’s Reference (No 4 of 2002) [2005] 1 AC 264, [2004] UKHL 43.
Sheldrake v DPP [2005] 1 AC 264; [2004] UKHL 43. This case had generated major judicial disagreement in the courts below, dissenting judgments being a routine feature of English courts’ post-HRA reverse onus jurisprudence: see Roberts (2007, pp. 407–413).
Thus, the proper scope of the offence of ‘possessing articles… etc’ was centrally at issue in Kebilene (Roberts 2002a), whereas Stumer simply assumes that terrorist purpose is an element of the offence. Also see Hodgson and Tadros (2009)’s illuminating discussion of the companion Terrorism Act 2000, s.58 offence.
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Acknowledgments
I am grateful to Liz Campbell, James Chalmers, Antony Duff and Matt Matravers for their editorial advice and forbearance.
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Roberts, P. Loss of Innocence in Common Law Presumptions. Criminal Law, Philosophy 8, 317–336 (2014). https://doi.org/10.1007/s11572-013-9235-8
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DOI: https://doi.org/10.1007/s11572-013-9235-8