The Presumption of Innocence as a Human Right


The Presumption of Innocence as a Human Right



THE PRESUMPTION OF innocence is a common law rule of evidence. It is also a human right.1 This chapter identifies three respects in which one is different from the other. A secondary thesis, which emerges from the human rights angle, is that the presumption of innocence reflects a central purpose of the criminal trial. That purpose is to hold the prosecution, as part of the executive arm of government, to account in its quest to enforce the criminal law.2

(a) The Presumption as a Common Law Rule of Evidence

In referring to the presumption of innocence as a common law rule of evidence, I mean the ‘golden thread’ that runs ‘throughout the web of English Criminal Law’ as it was famously proclaimed by Lord Sankey in Woolmington v DPP.3 The general conception can be briefly elucidated. The presumption assigns to the prosecution the burden of proving every element of the crime with which the accused is charged, and, subject to certain exceptions,4 of disproving any defence that has been put in issue. The prosecution will secure a guilty verdict only if it discharges this burden beyond reasonable doubt on all the evidence adduced at the trial.

On this view, the presumption is a rule that regulates the criminal trial. It puts the risk of non-persuasion on the prosecution, sets out what each side must do in order to get the verdict that it wants and tells the judge (or the jury where there is one) of the preconditions that must be met to warrant a conviction and of the ‘default’ decision in verdict deliberation. Less directly, the presumption influences the selection of evidence to present before (or withhold from) the court, informs the approach counsel take to the examination of witnesses, and, more generally, shapes trial strategies and argumentation.

There are many rules regulating the criminal trial, and only some of them are so important that their absence renders a trial fundamentally unfair. The presumption of innocence is one such rule. It is a standard of fair trial, and it is independent of other standards. A trial is fundamentally unfair where the court is biased or the accused is denied the opportunity to examine the witnesses against her; but—so it is said—these aspects of unfairness, taken separately or together, do not amount to a violation of the right to be presumed innocent.

These then are three salient features of the common law understanding of the presumption of innocence: first, the presumption is described in terms of the burden and standard of proof, as a general rule that places on the prosecution the burden of proving guilt to the standard of beyond reasonable doubt; secondly, this rule regulates verdict deliberation and shapes the conduct of the trial; thirdly, it is free-standing, a standard of fair trial that is conceptually separate from other such standards. As I will now argue, none of these features applies to the presumption as a human right.

(b) The Presumption as a Minimal and Universal Human Right5

To understand the presumption as a human right, we must begin with the nature of human rights in general. Human rights in general are basic in two senses: their demands are minimal and fundamental. They are minimal in that they set the ‘lower limits on tolerable human conduct’6 as opposed to envisioning standards of excellence. They are fundamental in the sense that they protect essential aspects of human dignity and secure crucial human interests. The norms of human rights are also universal; they are of international application, even if their interpretation needs to be culturally sensitive. If this is too controversial for you, then let us say that human rights conceptually aspire to be universal. I will argue later that the presumption of innocence as a human right is fundamental in protecting our freedoms. Here I want to consider the minimalist and universal dimensions of human rights as they apply to our understanding of the presumption of innocence.

If the presumption of innocence is or aspires to be of universal application, it cannot be defined in common law terms unfamiliar to lawyers of other legal traditions and formulated in a manner which ill fits the structure of non-adversarial systems.7 As noted above, the common law uses the concepts of ‘burden of proof’ and ‘proof beyond reasonable doubt’ in its articulation of the presumption. But the ‘burden of proof’, with its adversarial presuppositions, is not naturally at home in legal systems of the inquisitorial family, where the court plays a first and active role in ascertaining the facts.8 And not every legal system recognises the standard of proof beyond reasonable doubt. To capture the presumption as a universal right, a more general statement of its content is needed. An exemplar of such generality can be found in the judgment of Lord Diplock in Ong Ah Chuan v PP.9 According to him, natural justice requires that there must be ‘material before the court that is logically probative of facts sufficient to constitute the offence with which the accused is charged’. I do not think that this formulation captures completely the content of the presumption as a human right; I am only suggesting that broad language must be used in describing the presumption if we are to capture its universal demands, that is, demands that we would make in any country, whatever its legal tradition and whether or not it recognises the concepts of ‘burden of proof’ and ‘proof beyond reasonable doubt’.

To be universal, human rights have to be basic. The basic dimension of the presumption as a human right means that it cannot demand all and everything that the common law rule requires. A level of abstraction is necessary, a search for the minimum standard that must universally hold. So long as the basic demand is met, local variations in interpretation and implementation are permissible. Searching for the basic core is not an empirical matter of finding the lowest common denominator in existing legal systems. Human rights have normative and transformative dimensions.10

What the presumption of innocence requires, among other things, is that the state proves guilt as a condition to getting a person convicted of a crime and punished for it. There are different conceptions of the concept of proof. For instance, English law pegs proof to the standard of beyond reasonable doubt whereas French law treats it as a matter of intime conviction.11 Both are compatible with the presumption of innocence as a human right. This is not to say that anything goes. There is an internal constraint in the concept of proof. You have not proved anything if all that you have established is a suspicion.12 It is a violation of a human right to convict a person on a mere suspicion. This is true everywhere and at all times.13

(c) The Presumption as a Complex of Rights Against the State

The second feature of the common law way of understanding the presumption of innocence is to see it as a rule that regulates verdict deliberation and that shapes the conduct of the criminal trial. On this view, the addressees of the rule are the various trial participants. The presumption as a human right must be seen in different terms. Human rights are held primarily against the state, their main function being to constrain and obligate governments in their treatment of persons through institutions, laws and policies. As a human right, the presumption of innocence consists of a complex of rights held against the state. As we will see in the next section, an important corpus of those rights pertains to due process or, equivalently, a fair trial. But these rights do not exhaust the presumption of innocence; as a human right, its domain of operation is wider. The presumption is also the source of other rights against the state, rights that operate outside the confines of the courtroom.14

A public controversy arose in Singapore recently over the reach of the presumption. William Ding was convicted after a highly publicised 80-day trial of outraging the modesty of some of his students. He appealed successfully against his conviction. Following his acquittal, there was a call for the law to be changed to allow acquitted persons, such as Ding, to seek compensation from the state for what they have been put through. It was in the context of resisting this call for compensation that the spokesperson for the Attorney-General’s Chambers issued the following statement which was reported in The Straits Times on 8 May 2008:

There is often confusion in the public mind regarding what an acquittal means. The prosecution is obliged to prove the case beyond reasonable doubt. This means that if there is any reasonable doubt, the accused gets the benefit of it. It does not mean that the accused was innocent in the sense that he did not do the deed…. Where a case turns on one person’s word against another’s, very often the trial judge or the appeal court may consider that it is unsafe to convict. This does not mean that the judge is convinced that the accused did not do the act in question. As long as a reasonable doubt remains, the accused is entitled to be acquitted, even if the judge thinks he is probably guilty.15

Although this statement was not targeted specifically at Ding, some have read it as questioning his innocence. In his judgment allowing Ding’s appeal, which was delivered on 11 July 2008, VK Rajah JA made the following remarks which were widely seen as an implicit response to the views aired by the Attorney-General’s Chambers:

If the evidence is insufficient to support the Prosecution’s theory of guilt, and if the weaknesses in the Prosecution’s case reveal a deficiency in what is necessary for a conviction, the judge must acquit the accused, and with good reason: it simply has not been proved to the satisfaction of the law that the accused is guilty, and the presumption of innocence stands unrebutted. It is not helpful, therefore, for suggestions to be subsequently raised about the accused’s ‘factual guilt’ once he has been acquitted. To do so would be to undermine the court’s finding of not guilty and would also stand the presumption of innocence on its head, replacing it with an insidious and open-ended suspicion of guilt that an accused person would be hard-pressed to ever shed, even upon vindication in a court of law. I have no doubt that prosecutions are only commenced after careful investigation and prosecutorial discretion is never lightly exercised, but the decision of guilt or innocence is constitutionally for the court and the court alone to make. The court cannot convict if a reasonable doubt remains to prevent the presumption of innocence from being rebutted. In that result, there is no room for second guessing or nice distinctions; there is only one meaning to ‘not proved’ and that is that it has not been established in the eyes of the law that the accused has committed the offence with which he has been charged.16

The Minister for Law stepped into the fray with a speech in Parliament reaffirming the Government’s commitment to the presumption of innocence as a ‘core principle’ of the ‘rule of law’ while defending the position taken by the Attorney-General’s Chambers and noting that it was ‘possible for a person who has committed the offence to walk away free’.17

If the presumption of innocence is only a rule of evidence that regulates proof at the trial (as it is regarded in the United States),18 the views expressed by the Attorney-General’s Chambers and the Minister of Law are impeccably logical.19 But it seems me that they missed the thrust of the concerns expressed by Rajah JA. Justice Rajah took a larger view of the presumption (one that resonates with French and European law),20 according to which it is not only a rule that regulates the criminal trial. It also reaches beyond the trial and constrains the state in other ways. As a human right, the presumption has what Stefan Trechsel calls a ‘reputation-related aspect’. This, according to him:

aims to protect the image of the person concerned as ‘innocent’, i.e. not guilty of a specific offence. In other words, it protects the good reputation of the suspect. This means, for example, that a person who has not been convicted in criminal proceedings must not be treated or referred to by persons acting for the state as guilty of an offence.21

In Allenet de Ribemont v France, the European Court of Human Rights held that ‘the presumption of innocence may be infringed not only by a judge or court but also by other public authorities’.22 The French Interior Minister and two senior police officers were found to have violated the presumption when they publicly named the applicant as an instigator of a murder while the case was under investigation. In Singapore there occurred, one-and-a-half years after the Ding affair, a high-profile ‘hit and run’ accident where it served the Government’s interest to endorse this aspect of the presumption. A Romanian diplomat was suspected of having knocked down a number of pedestrians with his car, causing death to one and serious injuries to two others. He left the country soon after this incident. Public disquiet grew from the perception that the Government had not done enough to bring the wrongdoer to justice. In reply to a question put to him at a public meeting as to why ‘the authorities had been very quiet about the matter’, the Minister of Law stressed that ‘it was the role of the courts—not the Government—to determine guilt in a criminal case’. To drive the message home, he asked: ‘Let’s take a situation where a Singaporean is suspected as the driver. Let’s say you are the Singaporean. Would you like the Government to come out and say, “we think he’s guilty”? Is that fair?’23

That would indeed be unfair, and surely even more so where the subject of the comment has been acquitted by the court; the present aspect of the presumption should have greater force in that situation. Here is Trechsel again: ‘Once an acquittal has become final, the person concerned is protected… from any official statement which insinuates that he or she is guilty, and from any such statement which says that he or she is still under suspicion’.24

In the Ding controversy, as I have noted, the statements issued by the Attorney-General’s Chambers were not targeted specifically at him and they were made in the context of resisting calls for legislation to allow compensation in suitable cases where an accused person has been acquitted. So far as I know, the only statement concerning the dispute which referred specifically to Ding appeared in the Chinese daily, Lianhe Zaobao, dated 20 September 2008. When asked about Ding’s case, the serving Attorney-General was quoted as saying that certain information held by the Attorney-General’s Chambers was not disclosed to the public and would not be released:

In general, when we charge someone, we do not wait for the trial to start before looking for the evidence to convict … . The evidence is already there. Perhaps the judge does not want to accept the evidence. Perhaps the judge does not believe the testimony of the witnesses. However, this does not mean that the decision to bring charges against the defendant is wrong … . Therefore, I do not wish to comment further as to whether justice was done in Ding’s case because we have information that cannot be disclosed to the public. I shall not say any more.25

If this report is accurate, the Attorney-General, by hinting that there was more to this case than met the public eye, came near to insinuating that Ding might in fact be guilty even though he had been acquitted by the court. While his remarks would be unobjectionable under American law, given the narrow view it takes of the presumption, it is debatable whether they would amount to a violation of the presumption of innocence under European human rights law. Of course, Singapore is not bound by European law. But many human rights are not given legal force in many places. The non-existence of legal recognition should not stop conversation about human rights. Is there not scope for comparative analysis and an interest in global conversation?26

(d) The Presumption as the Right to Due Process

Contrary to the third feature of the common law understanding described earlier, the presumption as a human right is not a discrete standard of fair trial, conceptually separate from all other standards of fair trial; it is not merely one of many other qualities that a trial must have to be considered fair. The presumption is the general right to due process: it mandates that the state cannot convict someone of a crime unless and until the prosecution demonstrates her guilt in a process that bears the defining features, including rights and protections, of a fair trial.

This expansive reading of the presumption is unconventional today, at least among lawyers trained in the common law. But it has some historical support. As Kenneth Pennington tells us:

The maxim, innocent until proven guilty was born in the late thirteenth century, preserved in the universal jurisprudence of the Ius commune, employed in the defense of marginalized defendants, Jews, heretics, and witches, in the early modern period, and finally deployed as a powerful argument against torture in the sixteenth, seventeenth and eighteenth centuries. By this last route it entered the jurisprudence of the common law … . [B]ecause it was a transplant from the Ius commune, it entered the world of American law in a very different form. It no longer was a maxim that signified the bundle of rights that was due to every defendant … . In the jurisprudence of the Ius commune, the maxim summarized the procedural rights that every human being should have no matter what the person’s status, religion, or citizenship. The maxim protected defendants from being coerced to give testimony and to incriminate themselves. It granted them the absolute right to be summoned, to have their case heard in an open court, to have legal counsel, to have their sentence pronounced publicly, and to present evidence in their defense …. [T]he maxim meant ‘no one, absolutely no one, can be denied a trial under any circumstances’. And that everyone, absolutely everyone, had the right to conduct a vigorous, thorough defense.27

The original meaning of the presumption is mostly lost, at least to common lawyers. One of the remaining vestiges can be found in the Singapore case of Ong Ah Chuan v Public Prosecutor.28 Constitutional challenges were made to certain provisions of the Misuse of Drugs Act 1973. Under one of the challenged provisions, a person who was shown to be in possession of a certain quantity of proscribed drug was presumed to have it for the purpose of trafficking. It was then for that person to prove, on the balance of probabilities, that he did not have the drug for the said purpose. The defence argued that, by effectively requiring the accused to prove his innocence, the provision violated the presumption of innocence and was therefore unconstitutional. Article 9(1) of the Singapore Constitution states simply, and without mentioning the presumption by name, that ‘no person shall be deprived of his life or personal liberty save in accordance with law’. The Privy Council held that the term ‘law’ includes fundamental rules of natural justice. It further held that the contested statutory provisions did not offend those rules. The opinion of the Board was delivered by Lord Diplock. Rather than defining the presumption in the familiar language of Woolmington, as a rule imposing on the prosecution the general burden of proving guilt beyond reasonable doubt, Lord Diplock stated:

One of the fundamental rules of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it … . To describe this fundamental rule as the ‘presumption of innocence’ may, however, be misleading to those familiar only with English criminal procedure.29

The claim that the accused must be presumed innocent until proved guilty begs the question: how is guilt to be proved? Contrary to conventional wisdom, it cannot be enough that the prosecution has adduced evidence before the court capable of meeting the standard of proof beyond reasonable doubt. It is vitally important who controls the evidence to which the standard is applied. The trial is unfair and due process is denied where the prosecution alone determines what evidence is presented at the trial and the accused has neither the right to challenge the witnesses against her nor the right to adduce exculpatory evidence. Without those rights, the presumption of innocence is a charade.30

As a human right, the presumption is defeated only when guilt is proved in a manner that satisfies certain minimum requirements. These requirements are succinctly encapsulated in the phrase ‘proved according to law’. As Lord Diplock noted, ‘law’ must include fundamental rules of natural justice, one of which insists that guilt be determined by an independent and unbiased tribunal. Many other basic requirements are widely recognised. Two examples will suffice for present purposes. Article 11(1) of the UN Universal Declaration of Human Rights states that everyone charged with a penal offence has a right to be presumed innocent until proved guilty in a particular fashion, to wit, ‘in a public trial’ at which the accused ‘has had all the guarantees necessary for his defence’. Article 6(2) of the European Convention on Human Rights provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. This is followed by Article 6(3) which elaborates on what the law requires and preceded by a general provision on the right to a fair trial.31 The former states that guilt must be proved in a process that affords the accused numerous ‘minimum’ rights: the right to be informed promptly of the accusation, to defend himself in person or through legal assistance, to examine or have examined witnesses against him, and so forth.32 That the presumption of innocence is contained in a separate paragraph of its own in the European Convention might suggest that it is a distinct principle. But the Strasbourg Court has not interpreted it in that way. The three limbs of Article 6 form an integrated and inter-dependent set. According to Stumer, the Court ‘equates the presumption of innocence with a range of fair trial rights’33 and has treated it as ‘an equivalent to the general principle of fair trial’.34

The presumption of innocence insists on proper proof of guilt as a precondition for criminal conviction, which in turn is a pre-requisite of state punishment. ‘Proof’ can be conceptualised in different ways. One may think of proof as the production of evidence for the purpose of persuading the court to accept an allegation of fact, an outward activity of argumentation that is aimed at influencing the mental activity of deliberation and the analysis of evidence. One may also view proof from the epistemic angle and focus on the relationship between evidence and conclusions. That this relationship lies at the foundation of many disciplines (such as science and history) has fuelled the ambition to construct a general science of proof.35