Abstract
This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. It explores the idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable.
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Notes
There is debate about what implications that has. See Leverick (2002).
Continuing a trend considered in Ashworth (2000).
The central line of the argument was developed by myself and Stephen Tierney from a particular interpretation of domestic and European authorities in Tadros and Tierney (2004: 402).
My views on that issue are outlined in Tadros (2005, ch. 9).
[2003] UKHL 50.
See Tadros and Tierney (2004) for discussion of the relevant case-law.
Ibid.
Perhaps the most vociferous advocate of this view is Paul Roberts. For his latest defence, see Roberts (2005).
Lord Bingham comes close to endorsing this interpretation in AG’s ref no. 4 of 2002, para. 47–49, which is surprising given that he otherwise adopts the classical theory.
1995 SCCR 629.
At 631.
It might be argued here that the relevant time at which the inference is to be made is at trial. However, that doesn’t solve the problem. First, evidence that the defendant did not intend to steal may emerge, for good reason, after the trial. If such evidence does emerge, surely the Scottish Criminal Cases Review Commission would have good reason to order a retrial. Furthermore, even if that is the relevant time to evaluate the issue, the classical theory would suggest that a conviction on sound evidence that the relevant inference can be drawn would not constitute a wrongful conviction even were it true that the defendant did not intend to steal. But that seems plainly wrong.
It might be objected here that I am merely stipulating a definition of the presumption of innocence rather than really defending it. What I am attempting, however, is to show that the basic idea of what it means to treat a person as innocent until proven guilty requires this interpretation.
[2004] UKHL 43.
Although, see Tadros (2006, forthcoming)
It is possible that there are exceptions, which Stephen Tierney and I discuss in Tadros and Tierny (2004, 418–420).
Para. 40.
Ibid.
See also the bizarre reasoning in para. 49 regarding the Terrorism Act 2000 s.11.
This is a further way to understand the ‘margin of appreciation’.
For this is a common problem in applying standards of reasonableness in the criminal law. See Tadros (2005, ch. 13) for discussion of the literature on that issue.
[2004] UKHL 43.
Ibid. para. 9. See also Lord Roger of Earlsferry at para. 59.
Ibid. para. 13.
Para. 90.
Para. 41.
Consequently replaced by the Prevention of Terrorism Act 2005.
[2004] UKHL 56.
See the recent affirmation in AG’s ref. no. 4 of 2002.
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Acknowledgements
Many of the ideas in this paper were developed together with my friend and colleague Stephen Tierney, to whom I am also grateful for comments. Earlier versions of the paper were presented at the Stirling Political Philosophy Group at the University of Stirling, at the Issues in Criminal Theory seminar series at the University of Birmingham and the IVR World Congress on Social and Legal Philosophy at the University of Granada. I am grateful to participants for their insights, which have aided the development of the paper. I am also grateful to Andrew Ashworth, and to the referees of the journal, for detailed comments and suggestions.
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Tadros, V. Rethinking the presumption of innocence. Criminal Law, Philosophy 1, 193–213 (2007). https://doi.org/10.1007/s11572-006-9016-8
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DOI: https://doi.org/10.1007/s11572-006-9016-8