The Legal Position.
During the last decade, the presumption of innocence has been at the center of a lively scholarly debate in England. The Human Rights Act 1998 transposed into English law art. 6(2) of the European Convention on Human Rights, stating that “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The presumption has two facets.
- It advances the general demand that “the treatment of the defendant throughout the criminal process […] be consistent, as far as possible, with his or her innocence. Used in this broad […] sense, the presumption of innocence underpins the whole range of rules intended to ensure fairness to defendants.”
- In addition, presuming the defendant innocent involves a particular requirement that, it is a necessary condition for conviction, that the state proves the defendant’s guilt.
The Crown Prosecution Service, (CPS) will not bring prosecutions, unless they have a greater than fifty percent chance of obtaining a conviction. We understand from numerous solicitors working within the criminal law, that many will not prosecute without a minimum of sixty six percent chance of conviction. This suggests that there is significant weight of evidence against the accused. How then, can the accused ever be considered “innocent”?
The law speaks only of defending the fairness of the system for defendants. Surely, the ‘presumption of innocence’ is not a balanced position to take, both in the interests of fairness to both parties and in order to get to the truth. Logically and equitably therefore, there should be no presumption at all, but unequivocal ‘impartiality’ by the law. We can no longer afford to presume innocence, in the light of witness ‘coaching’ by some legal professionals (that undoubtedly happens) and the disposal of evidence by the accused, prior to arrest. Disposal of evidence should be treated as an obstruction to the gathering of evidence and treated harshly by courts through direction of the Jury and inference that can be taken as a result.