This discussion will concentrate on the ‘cornerstone principles’ of the right to a fair trial, namely: the presumption of innocence and the standard of proof beyond reasonable doubt, in relation to prevention of wrongful conviction. It will be argued in accordance with Sundby that these procedural features undeniably benefit the accused in the usual criminal procedure, as they operate to prevent wrongful conviction.
However, despite the importance of these integral principles in criminal law, following the September 11th attacks on the Twin Towers, the presumed threat to national security was so significant that it was able to outweigh the importance of these principles and their function to protect accused persons from wrongful conviction. In counteracting terrorism, a ‘dual system’ of criminal justice developed under the Anti-terrorism, Crime and Security Act (2001), as suspects were presumed guilty and the standard of proof was altered. The modification of these principles reveal protection from wrongful conviction was outweighed by security concerns.
‘ The laws of evidence have as their primary concern the protection of accused persons from wrongful conviction. All other considerations, many being of marked significance, are to be weighed in light of this crucial principle’.
By Asharntay Kingston
This discussion will concentrate on the ‘cornerstone principles’ of the right to a fair trial, namely: the presumption of innocence and the standard of proof beyond reasonable doubt, in relation to prevention of wrongful conviction.[1] It will be argued in accordance with Sundby that these procedural features undeniably benefit the accused in the usual criminal procedure, as they operate to prevent wrongful conviction.[2] However, despite the importance of these integral principles in criminal law, following the September 11th attacks on the Twin Towers, the presumed threat to national security was so significant that it was able to outweigh the importance of these principles and their function to protect accused persons from wrongful conviction.[3] In counteracting terrorism, a ‘dual system’ of criminal justice developed under the Anti-terrorism, Crime and Security Act (2001), as suspects were presumed guilty and the standard of proof was altered.[4] The modification of these principles reveal protection from wrongful conviction was outweighed by security concerns.
The presumption of innocence is a long standing intrinsic part of the right to a fair trial in criminal law, as it operates to ensure that ‘everyone charged with a criminal offence shall be presumed innocent until proven guilty according to the law’.[5] The enshrinement of this principle in both domestic law and in the European Convention on Human Rights(ECHR) is illustrative of the importance of this human right, as it seeks to promote due process in the pursuit of justice by providing the accused with protection against wrongful conviction.[6]
According to Ashworth the rationale behind this is ‘a moral and political principle based on the shared conception that when an individual is deprived of their liberty there should be a good reason for doing so’, ie; guilt.[7] The right to liberty is viewed as so fundamental to human beings that a deprivation of it is inherently punitive.[8] The importance of protection against wrongful conviction lies in that it relates to the right to liberty, a fundamental right in a democracy. Therefore, where this protection is withdrawn it represents the erosion of democracy and a transition to an arbitrary state. This is evidenced by the international recognition and support given to the presumption of innocence.[9]
Sundby notes that the presumption of innocence is illustrative of the ‘deliberate imbalance in favour of the defendant’.[10] This observation is well founded, particularly in consideration of Blackstone’s assertion that ‘the law holds that it is better that ten guilty persons escape than one innocent suffer’.[11] On this premise it appears that these principles of the laws of evidence have as their primary concern the protection of accused persons from wrongful conviction. This argument is supported by the penal constraints that have been imposed upon the UK through the Human Rights Act (1998) to ensure that due process is upheld, in accordance with Article 6 (2) of the ECHR.[12] The European Court of Human Rights (ECtHR) has emphasised that the importance of the right to be presumed innocent ‘is one of the elements to ensure a fair trial’.[13] In support of this, Amnesty International suggest ‘the presumption of innocence is one of the fundamental fair trial rights, that is non-derogable and must be respected at all times’.[14] Theoretically, their claim is accurate, particularly as the Human Rights Committee held in General Comment 29 to Article 4 of the ICCPR that ‘fair trial rights are guaranteed in the laws of war, and are guaranteed in armed conflict, therefore there is no derogation from these rights in emergency situations’.[15] However, in practice following the September 11th terrorist attacks on the Twin Towers in the United States, security concerns outweighed the right to the presumption of innocence and protection against wrongful conviction. Instead foreign suspected terrorist were subjected to a ‘presumption of guilt’, as they were indefinitely detained without trial as a means to protect national security under section 23 of the ATCSA (2001).[16]
The September 11th terrorist attacks in the US ignited fear in the British government because they believed that foreign terrorist were in the UK.[17] This created a profound dilemma because the government had to adhere to key human rights principles such as Chahal, which ‘absolutely precluded’ the government from deporting terrorist suspects, where they faced a risk of torture in their home countries.[18] Yet in the face of an imminent terrorist attack the government did not want to allow suspected terrorist to remain free within the UK, as they posed a threat to national security. As a solution to this dilemma the ATCSA (2001) was promulgated, which permitted the indefinite detention of suspected terrorist without trial.[19] This shows that a ‘dual system’ of criminal justice was created because in the conventional procedure the deprivation of liberty is reserved as a punishment, or as a bail condition for the most serious criminal offences. This reveals that contrary to Blackstone’s claim on protection against wrongful conviction , under this provision the right to be presumed innocent was outweighed by the imminent threat posed to national security. As expressed by the then Prime Minister Tony Blair:
‘The whole of our system starts from the proposition that its duty is to protect the innocent from being wrongly convicted… But surely our primary duty should be to allow law-abiding people to live in safety... It doesn’t mean abandoning human rights. It means deciding who’s come first’.[20]
In weighing the presumption of innocence against the security of the public, there were two options: to modify the presumption of innocence or to remove it. The government chose to modify it by suspending the presumption of innocence for foreign suspected terrorist, because they posed a serious and imminent threat to national security. This has been observed by Laqueur: ‘new terrorism is different in character, aiming not at clearly defined political demands but at the destruction of society and the elimination of large sections of the population’.[21] In an attempt to prevent a similar attack from taking place in the UK, the presumption of innocence was suspended for suspected foreign terrorist and was replaced with a ‘presumption of guilt’ because detention was permitted to proceed a trial and the establishment of guilt.[22] This reveals that the ATCSA (2001) punished the innocent, solely on the basis that they were foreign suspects.[23] However, a justification for this is that terrorism seeks to destroy democracy and all of the democratic principles it represents, therefore, protection from wrongful conviction had to be suspended so that the security of the public could be adequately protected.
Similarly, the standard of proof was altered for those accused of terrorism. In the usual criminal procedure, the burden of proof is upon the prosecution to prove guilt beyond reasonable doubt.[24] Fletcher asserts that ‘beyond reasonable doubt is the strictest standard of proof’ as even where significant evidence of guilt exists, the jury will acquit the defendant if reasonable doubt remains.[25] The high threshold supplements the presumption of innocence by placing the onerous burden and the risk of reasonable doubt at the end of the case upon the prosecution.
The acknowledgement of this standard as a fundamental part of the right to a fair trial has been expressed in common law and has been implied in ECtHR jurisprudence.[26] Lord Denning expressed in the British case of Miller v Minister of Pensions (1947) that ‘nothing short of beyond reasonable doubt will suffice’.[27] This suggests that this standard of proof is immovable because criminal liability is so serious, every citizen has the right not to have the state inflict such liability on him unless he is, in fact, guilty. Similarly, Viscount Sankey said in Woolmington v Director of Public Prosecution (1935) that duty of the prosecution to prove guilt beyond reasonable doubt is ‘the golden thread (in criminal law) ….and no matter the charge...no attempt to whittle it down can be entertained’.[28] These statements highlight that the standard of proof operates as a check and balance to ensure that an accused person is not disadvantaged by the states greater resources to prove guilt.
[...]
[1] Adam Gearey, Wayne Morrison and Robert Jago, The Politics Of The Common Law (Routledge 2013) 239
[2] Scott E Sundby, 'The Reasonable Doubt Rule And The Meaning Of Innocence' (1989) 40 Hastings Law Journal 457,458 <http://heinonline.org/HOL/Page?public=false&handle=hein.journals/hastlj40&page=457&collection=journals#> accessed 16 April 2016.
[3] Helen Fenwick, 'Responding To 11 September: Detention Without Trial Under The Anti-Terrorism, Crime And Security Act 2001' (2002) 73 Political Quarterly 80,85 <http://onlinelibrary.wiley.com.ezproxy.lancs.ac.uk/doi/10.1111/1467-923X.73.s1.7/epdf> accessed 16 April 2016.
[4] European Convention on Human Rights Article 6 s2; Abraham S. Goldstein, 'The State And The Accused: Balance Of Advantage In Criminal Procedure' (1960) 69 The Yale Law Journal. 1149,1150
[5] European Convention on Human Rights Article 6 s2; Abraham S. Goldstein, 'The State And The Accused: Balance Of Advantage In Criminal Procedure' (1960) 69 The Yale Law Journal. 1149,1150
[6] Woolmington v DPP [1935] UKHL 1
[7] Andrew Ashworth, 'Four Threats To The Presumption Of Innocence' (2006) 10 The International Journal of Evidence & Proof <http://epj.sagepub.com/content/10/4/241.full.pdf+html> accessed 16 April 2016. 241,249
[8] Engel and Others v The Netherlands(1976)1 EHRR 647, para 58; William Blackstone, The Commentaries Of Sir William Blackstone, Knight, On The Laws And Constitution Of England (American Bar Association 2009). 9
[9] Charter of Fundamental Rights of the European Union Article 48; International Covenant on Civil and Political Rights Article 14 s2
[10] Scott E Sundby, 'The Reasonable Doubt Rule And The Meaning Of Innocence' (1989) 40 Hastings Law Journal 457,458 <http://heinonline.org/HOL/Page?public=false&handle=hein.journals/hastlj40&page=457&collection=journals#> accessed 16 April 2016.
[11] William Blackstone, Commentaries On The Laws Of England (University of Chicago Press 1979)352
[12] Human Rights Act (1998) s3 stipulates: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’.
[13] Allenet de Ribemont v France (1995) App No 15175/89 (Application No) A/308 para 35
[14] Amnesty International EU Office, 'Amnesty International Response To The European Commission Green Paper On The Presumption Of Innocence, COM (2006) 174 Final' (2006). P6
[15] Human Rights Committee, ‘General Comment 29, States of Emergency (article 4)’, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001).
[16] Reza Banakar, Rights In Context: Law And Justice In Late Modern Society (Ashgate Publishing 2010) 211
[17] 'Anti-Terrorism Measures' (www.parliament.uk, 2001) <http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo011015/debtext/11015-06.htm> accessed 16 April 2016
[18] Chahal v UK (1996) 23 EHRR 413 para 79
[19] The Anti-terrorism, Crime and Security Act (2001) Part 4 Section 23
[20] BBC News, 'Full Text Of Tony Blair's Speech' BBC News (2015) <http://news.bbc.co.uk/1/hi/uk_politics/4287370.stm> accessed 7 April 2016.
[21] Walter Laqueur, The New Terrorism: Fanaticism And The Arms Of Mass Destruction (Phoenix 2002) 81
[22] Reza Banakar, Rights In Context: Law And Justice In Late Modern Society (Ashgate Publishing 2010)211
[23] A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department (2004) UKHL 56 , section 4 of the ATCSA (2001) was declared incompatible by parliament because it was found to be discriminatory contrary to Article 14 and Article 5.
[24] With the exceptions of the defence of insanity, express statutory exceptions and implied statutory exceptions.
[25] George P Fletcher, Basic Concepts Of Criminal Law (Oxford University Press 1998)16
[26] The ECtHR expressed ‘any doubt should benefit the accused’ in Jabardo v Spain (1989) 11 EHRR 360 para 77
[27] Miller v Minister of Pensions (1947) 2 All ER 372 para 373
[28] Woolmington v DPP (1935) 25 Cr App R 72 para 481
- Arbeit zitieren
- Asharntay Kingston (Autor:in), 2016, Laws of evidence in the UK. Standards of proof, reasonable doubt and protection from wrongful conviction after ACTSA, München, GRIN Verlag, https://www.grin.com/document/349881
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