Innocent until proven guilty... or not?

From USA to UK: thoughts on the doctrine

If you are like me and are obsessed with court room dramas and true crime documentaries, you will no doubt be well aware of the phrase "innocent until proven guilty." Under the Irish criminal law, crimes have special provisions and safeguards which are not afforded to a tortious wrongdoing (civil wrong), one of the most significant being the presumption of innocence. The presumption of innocence is rebutted when the jury is satisfied beyond reasonable doubt that the accused is guilty. Infamously Lord Sankey in leading case of DPP v Woolmington [1935] eloquently expressed how "throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt." The procedure of innocent until proven guilty is fair protocol enshrined in the Constitution. This criminal doctrine is a common one with the presumption of innocence being called "a general principle of our political morality" (Twining, 1990) and a "cornerstone of Ango-Saxon justice" (Abraham, 1993). The Irish system is no different, with the superior courts acknowledging the principle as a "fundamental postulate" of the criminal law in Ireland, constitutionally protected as part of the right to a fair trial.

Defining the principle 'presumption of innocence'

The principle is a complex one to define because it is often used to denote different things. Schwikkard (1998) puts it that "despite the laudatory rhetoric associated with the presumption of innocence, there is little consensus regarding its contents and scope leading to considerable variation in respect of its normative values." In a very narrow sense, it can be defined as giving expression to the more "prosaic evidential rules that the prosecution bears the burden of proof and the the guilt must be beyond a reasonable doubt" (Hamilton, 2011). Much has been written and commented on in the area of the law of evidence and presumption of innocent, such as Cross and Tapper's on Evidence, who comment that when we say an accused person is presumed innocent, all this really means in practice is that onus of rebutting this innocence and the obligation to prove the case against him is beyond a reasonable doubt.

Perhaps in its broadest sense, the principle of the presumption of innocence is more to do with the doctrine of liberty as enshrined within the criminal justice system which extends beyond mere trial and cross-examinations, but rather the entire criminal justice system, including police investigation and interviewing (Hamilton, 2011). This idea was reinforced by the Supreme Court in the case of the People (AG) v O'Callaghan [1966] when Walsh J noted that "the presumption of innocence until trial is a very real thing and not simply a procedural rule taking effect only at the trial." In this case the Supreme Court held that the Courts must definitively respect the principle as a "very real thing" and that more than mere verbal respect in needed for it to be adequately represented.Recent Irish decisions tend to support this view, such as the case of DPP v O'Toole [2003] whereby Hardiman J overturned a conviction in the Court of Criminal Appeal holding that the presumption of innocence should have been adequately explained as separate to the burden of proof and not simply "merely an alternative way of stating it" as was shown to be the case. Thus, it appears that the Courts in Ireland view the presumption of innocence as an important practical procedure, and not simply a theoretical or technical statement. This may primarily be due to the principle of the presumption of innocence being of fundamental constitutional importance and that there exist a cause and effect relationship between the presumption of innocence and the evidential rules. Dealing with the presumption properly is vital for the integrity of any criminal trial. As such, the principle remains a cornerstone in Irish criminal law, and not a proxy for the evidential rule of the burden of proof beyond reasonable doubt (Hamilton, 2011). Importantly, presumption of innocence does not start at trial, it must be embedded from the moment an accused is arrested to the moment the person is convicted.

From theory to reality

Yet, despite the prevalence of judgements highlighting the seminal nature of the principle on the presumption of innocence, developments in the legal system has placed the reality of the practice of the principle into serious question (Hamilton, 2011). In their essay Reconstructing Criminal Law, Lacey et al (1990) note how "we take [the presumption of innocence] so much for granted that even the widespread institutional and social practices which sit unhappily with it... do not threaten to displace it, and rarely even call forth critical comment."

So what are these new practices? They are wide-ranging, but include (to name a few) the treatment of suspects at police stations, the use of custody for 'suspects' refused bail, preventive detention, increased police powers, pressure on people to plead guilty and prejudicial media reporting. With these enhanced provisions, the presumption of innocence band protecting this constitutional right becomes more nuanced when looking at the practical criminal law. Ashworth (2006) notes how the presumption of innocence is under threat on four separate issues.

For example, the introduction of the guilty plea discount (in Ireland, the discount aligns with the discount in England and other common law jurisdictions), now enables individuals to enter into a guilty plea for an offence which adjusts their sentencing by a third. Section 29 of the Criminal Justice Act [1999] provides that the sentencing court, shall consider the time and stage where the individual indicated an intention to plead guilty and the circumstances in which the intention was given. Realistically, it is likely occurrence that the discount applied varies according to judges and courts (Hamilton, 2011). In the case of DPP v Gillane [1998], Lynch J noted "Now the first thing to be remembered about this case, as was the Applicant's right, he fought the matter tooth and nail. That is his perfect right. It doesn't add one day to the appropriate sentence, but it does mean that he is not entitled to the discount which is now given virtually as a matter of course... [when there is a guilty plea]."

Further, the compatibility of the presumption with the guilty plea discount, the Irish courts argue that the defendant who insists on going to trial is not punished more than one who enters a guilty plea, but rather the individual entering a guilty plea is punished less on account of his guilty plea. Again, in reality, much of the case law in this area has seen the defendant punished for their decision to make the prosecution essentially do their job, that is, to prove the accused's guilt. This is a serious challenge to the ostensible commitment to the presumption of innocence and adversarial justice more widely (Hamilton, 2011). Baldwin and McConville (1978) in an interesting project, interviewed English defendants who pleaded guilty taking the discount. The scholars found that most defendants viewed the reasoning behind it as 'meaningless' and rather than looking positively on the discount, viewed the system as a means of penalising those who unsuccessfully contested their case.

Reverse onus

With this all said, statutory exceptions exist that create a reverse-onus on the accused. Such provisions are increasing in the Irish and other jurisdictions.

In the case of O'Leary v AG [1993], the case considered the interpretation of Section 24 of the Offences Against the State Act [1939] which states that possession or proof of possession by an accused of 'incriminating documents' shall be "evidence without more, until the contrary is proved" that the accused was a member of an illegal organisation. In the High Court, Costello J concluded that Section 24 only placed an evidential burden of proof on the defendant, rather than a legal burden. As such, the defendant can decide not to call any evidence in the case and would subsequently be legally entitled to an acquittal if the evidence did not establish the accused's guilt beyond a reasonable doubt. The Supreme Court later upheld Costello J's decision. The judgment beg a fundamental question as to what test exists to protect and determine the constitutionality of any future statutory caveats to the principle of presumption.

Presumption & historic sexual abuse cases

Since the 1990s, a line of jurisprudence in the area of historic sexual abuse cases has reversed the presumption of innocence. Campbell and colleagues (2007) note how this seriously challenges the "normative legitimacy" of the principle of presumption in Irish criminal law. In Ireland, an accused charged with historic sexual abuse can apply for a judicial review application for the grant of an order of prohibition in a civil court on the grounds that the delay prejudices their right to a fair trial. The delay by a complainant though completely understandable and justifiable on many accounts (emotional, psychological trauma or even directly via the defendant to stay silent), it nevertheless places an assumption of guilt on the accused which appears to breach the presumption of innocence enjoyed by the accused in relation to the charges faced.

In the more recent case of DPP v Forsey [2018], the Supreme Court in a 41 majority, reverted the convictions of the former councillor, as the reverse burden of proof imposed on him was a "clear inroad on the presumption of innocence" as noted by O'Malley J. In the case, there existed a significant error in interpreting the legislation which amounted to a "failure to appreciate and apply a fundamental principle of constitutional law." Mr Forsey in 2006 received a sum of €80,000 on three separate payments from Mr Ryan who was a developer in Co. Waterford. Mr Forsey was a member of the local Dungarvan Town Council. The DPP accused the defendant of obtaining the money corruptly and subsequently, as the onus of proof reversed and placed on the defendant, Mr Forsey was convicted on six counts of corruption contrary to Section 1(1) of the Prevention of Corruption (Amendment) Act [2001] and sentenced to six years imprisonment. The reverse burden of proof was a clear violation of the presumption of innocence, violating Article 38.1 of the Constitution. O'Malley J stated, "in attempting to discern the impact of a particular measure on the presumption of innocence" must consider the following questions: 1) Has the provision transferred a burden in respect of an essential element of the offence, that would otherwise have fallen to be proved by the prosecution beyond reasonable doubt? and 2) Does it require the accused to prove that the element in question does not exist?

O'Malley J later noted, “if an accused has to prove innocent receipt on the balance of probabilities, it would mean that he or she would have to persuade the jury that… it was more likely than not that he or she did not receive the money corruptly. Since corrupt receipt is an essential element of the offence, it would mean that the accused would have to disprove that element – he or she would have to affirmatively prove innocence.” O'Malley J therefore allowed the accused appeal. MacMenamin J in his dissenting judgement stated that the case of DPP v Cronin [2006] set "the criteria of fundamental injustice, and evidential thresholds" finding that "these thresholds have not been crossed."

Concluding thoughts

The presumption of innocence is of vital importance from the start to the end of a criminal process, not least due to its constitutional protection. Yet, socio-legal issues have led the the principle becoming threatened by recent developments such as increased police powers and the guilty plea discount which make the practical protection of the constitutional provision somewhat difficult. Nevertheless, recent case-law evidences that a breach of the principle will not be tolerated, which is no doubt welcome.

- Study mood