The Presumption of Innocence

The presumption of innocence is universally recognized as a fundamental human right and a core principle in the administration of criminal justice. Nonetheless, statutes creating criminal offences regularly depart from the presumption of innocence by requiring defendants to prove specific matters in order to avoid conviction. Legislatures and courts seek to justify this departure by asserting that the reversal of the burden of proof is necessary to meet the community interest in prosecuting serious crime and maintaining workable criminal sanctions. This book investigates the supposed justifications for limitation of the presumption of innocence. It does so through a comprehensive analysis of the history, rationale and scope of the presumption of innocence. It is argued that the values underlying the presumption of innocence are of such fundamental importance to individual liberty that they cannot be sacrificed on the altar of community interest. In particular, it is argued that a test of 'proportionality', which seeks to weigh individual rights against the community interest, is inappropriate in the context of the presumption of innocence and that courts ought instead to focus on whether an impugned measure threatens the values which the presumption is designed to protect. The book undertakes a complete and systematic review of the United Kingdom and Strasbourg authority on the presumption of innocence. It also draws upon extensive references to comparative material, both judicial and academic, from the United States, Canada and South Africa.

Auteur

Andrew Stumer is a practising barrister in Brisbane, Australia. He obtained his DPhil in law from the University of Oxford in 2008.

Contenu

INTRODUCTION

1. THE PRESUMPTION BEFORE THE HUMAN RIGHTS ACT
   A. History of the Presumption of Innocence
   B. Burden of Proof
2. Persuasive Burdens
3. Evidential Burdens
   C. Standard of Proof
   D. Impact of the HRA
   E. Conclusion
4. RATIONALE FOR THE PRESUMPTION
   A. Two rationales for the Presumption
5. Protecting the Innocent
6. Promoting the Rule of Law
   B. Limitation of the Presumption
7. Limitation of Rights
8. Threat of Serious Crime
9. When the Rationale is Attenuated
   C. Conclusion
10. SCOPE OF THE PRESUMPTION
    A. Substantive Approach
11. Rejection in the English Cases
12. Case for a Substantive Approach
13. Other Constraints on Unfair Offences
    B. Narrow Procedural Approach
14. Confusion in the English Cases
15. Case for a Narrow Procedural Approach
    C. Broad Procedural Approach
16. Greater Power includes the Lesser
17. Risk of More Strict Liability Ofences
    D. Conclusion
18. THE PRESUMPTION IN STRASBOURG
    A. The Content of the Presumption
19. Official Decisions Reflecting Guilt
20. Burden of Proof
21. Presumptions Confined within Reasonable Limits
22. Article 6(2) and Substantive Law
    B. Limitation of Article 6 Rights
23. Community Interest under Article 6(2)
24. Community Interest and other Article 6 Rights
    C. Conclusion
25. PROPORTIONALITY AND THE PRESUMPTION
    A. Confusion in the English Cases
26. Necessity Approach
27. Balance Approach
28. A 'Difference of Emphasis'
    B. The Nature of the Proportionality Inquiry
29. Legitimate Objective
30. Suitability, Necessity and Balance
31. Proportionality and the Problem of Deference
    C. Conclusion
32. ALLOCATING THE BURDEN OF PROOF
    A. Seriousness of the Offence
    B. Penalty
    C. Regulatory Offences
33. Minimal Censure and Penalty
34. An Effective Regulatory Regime
    D. Knowledge and Ease of Proof
35. Relative Ease of Proof
36. 'Peculiar Knowledge'
    E. Importance of Matters Proved by Prosecution
37. Proof of Wrongfulness
38. Connection between Basic and Presumed Fact
    F. Conclusion
    Conclusion