Abstract
Many international instruments proclaim that those who face criminal prosecution ought to be afforded a ‘presumption of innocence’, and the importance and central role of this presumption is recognized by legal systems throughout the world. There is, however, little agreement about its meaning and extent of application. This article considers the purposes of legal presumptions in general and explores various, sometimes contradictory, conceptions of this most famous one. It is equated by many scholars to the requirement that the prosecution prove guilt beyond a reasonable doubt. As such, it is merely a rule of evidence (albeit an important one), with no application pre- or post-trial. The article advocates adoption of a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law. As such, it should be promoted as a practical attitude to be adopted by the key protagonists in the justice system, for the duration of the criminal process.
Highlights
In August 2014 the Mayor of London suggested that UK criminal law be amended to deal with the dangers posed by the jihadist group ‘Islamic State’ (ISIS)
The article advocates adoption of a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law
The article advocates a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law
Summary
In August 2014 the Mayor of London suggested that UK criminal law be amended to deal with the dangers posed by the jihadist group ‘Islamic State’ (ISIS). This article explores the purposes of legal presumptions in general, and assesses various, often contradictory, conceptions of this most famous one It is often treated as a rule of evidence, synonymous with the burden of proof being on the prosecution to prove guilt beyond a reasonable doubt, and having no application beyond the trial itself. The article advocates a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law. It proposes that the presumption of innocence be promoted as a ‘practical attitude’: a mind-set which determines conduct.[2] This practical attitude should be adopted by the key protagonists in the justice system, for the duration of the criminal process
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