The Fragile Presumption of Innocence

This month, in two jurisdictions where I’ve previously practised, there have been attacks on the presumption of innocence.

In Australia, campaigning journalist Louise Milligan fronted a women lawyers’ gala dinner in Canberra as guest speaker and proceeded to take a pop at lawyers who defend alleged sex offenders. Details are sketchy, because neither a recording nor a transcript of her speech has been made available, but the whole business is winding up the Bar Council no end. Its local president, Rebecca Curran, said it wanted to distance itself from the views expressed by Milligan and send a “message of support” to members, especially those who practise criminal law.

Curran said a “significant” number of the body’s members who attended the gala were “deeply offended and distressed” by Milligan’s speech at an event to celebrate the contribution of female lawyers to the profession. Lawyers present claimed that they felt under attack: the speech shamed female barristers and solicitors who defended those accused of sexual crimes.

In Scotland, meanwhile, one of the country’s most senior advocates, Frances McMenamin KC, warned that the Scottish National Party’s proposal to drop juries in rape and sexual offence trials—to secure more convictions—perches the country’s famously just legal system atop a very slippery slope.

It’s not that sex offenders fail to be convicted once they’re put on trial. Conviction rates are about the same as they are for other violent offences. The problem is that so few cases are brought to trial in the first place. This is particularly dangerous when it comes to rape, notoriously a crime of recidivism. The SNP proposal thus emerges from a failure to arrest and prosecute enough sexual offenders.

Scotland was a Dutch-Roman jurisdiction before 1707 and remains a unique hybrid, blending Roman law and common law. If a jurisdiction able to get such a change right existed, Scotland would be it.

There has long been talk of copying the French system, for example. In France, the complainant in sexual offences has her own representation in court, in addition to the state prosecutor. She is cross-examined directly by the judge instead of counsel for the accused. Both the accused and complainant are anonymous, by court order, until a final verdict has been reached at first instance. Juries are used less often, with more sex offences tried summarily.

More importantly, all French law requires is that (a) an intentional sexual act took place and (b) there was no free agreement by the complainant. There is no subjective test, as there is in England, for the accused not to have reasonably believed there was consent. Free agreement is assessed by an objective test based on behaviour. Doing it this way takes out the subjective element of the crime altogether, while requiring the courts to prove only one negative instead of two. It becomes significantly easier not only to secure a conviction, but to bring cases to trial.

However, McMenamin KC sounds fair warning. Importing bits of civilian law into common or mixed systems risks upsetting the delicate checks and balances designed to protect the accused. She also points out that “even other countries not so historically associated with democratic traditions and institutions are turning towards a jury system, such as Argentina and Bulgaria.” The UK has been here before, too—in a different context—with its Diplock Courts. These allowed for non-jury trials of terrorism offences during Northern Ireland’s Troubles. They did not reflect well on British justice.

Scotland’s proposal is far from the most extreme I’ve seen. There’s also believe all women or lowering the standard (from the criminal law’s beyond reasonable doubt to the civil law’s balance of probabilities), and removing the right of confrontation.

Deeply alarming talk among feminists of reversing the onus of proof—and the celebration of systems that people believe have already done this—is a reminder that the presumption of innocence, although older than classical liberalism, is similarly fragile.

Making the Case

Lawyers must once again make the case for the presumption of innocence, and not merely for us, or for visiting journalists, but to the world at large. Any such argument needs to acknowledge imperfections while noting that the informal justice which seeks to replace it is sibling under the skin to a lynch mob.

Margaret Atwood is right to draw comparison with the Salem Witch trials, precisely because a man is guilty by accusation alone: “the rules of evidence,” as she says, “are such that you cannot be found innocent.” Yes, this is what history tells us to expect when the formal justice system has failed people in large numbers, but the alternative—reversion to a world where guilt is to greater or lesser degrees assumed—doesn’t bear thinking about.

In England, as early as the ninth century, we find Alfred the Great stating that “in cases of doubt one should rather save than condemn.”

The presumption of innocence is a bit like democracy: the worst system in the world, except for all the others we’ve tried.

I use the word “reversion” advisedly, because for most of human history, we human primates have believed that where there is smoke there is fire. When we have accused people of wrongdoing, we’ve considered our accusations true because the accused “have it coming to them.” The presumption of innocence represents a decisive rejection of the just world fallacy—that a person’s actions always result in fair and fit consequences.

It is uncomfortable to accept that much suffering is random, that sometimes, bad things happen for no reason at all. It’s easier to believe people must have done something to deserve what they get, including being accused of a crime. If bad things only happen to those who deserve them, and I’m a good person, then I can be sure that nothing bad will happen to me, goes the logic.

Many people do not appreciate, for example, that the conversation between Abraham and God in Genesis 18:23-32 concerning the fate of Sodom and Gomorrah could only have arisen in a society where behind every accusation was a presumption of guilt: “And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.” Abraham must prove there are a few good men: it’s to his great moral credit that he bargains the vengeful deity down.

If the world of Ancient Israel is now decried as unrepresentative of Western Civilisation, then the world of Classical Athens, presumably, is not. Yet Socrates’ Apologia reads oddly to modern lawyers because Athens, too, was in large part a presumption of guilt society.

Over time, Athenian society’s understanding of legal presumptions did begin to shift, but even at best it’s more confusing than clear. Greek philosophy was a marvel; its law, by contrast, was intellectually squalid. Aristotle wrote things like this: “it is a serious matter to decide that a slave is free, yet it is much more serious to convict a freeman of being a slave.”

Grapple, grapple, but not quite right.

N Guilty Men

The presumption of innocence arose in only two civilisations: Rome and England. Despite attempts to prove the latter legal system was influenced by the former, the concept evolved independently. It is from Roman or English lawyers and politicians one first sees ringing statements like, “I would rather ten guilty persons should escape, than one innocent should suffer,” or “a person ought not to be condemned on suspicion; for it is preferable that the crime of a guilty man should go unpunished than an innocent man be condemned.”

The first is from Cicero, the second is from Trajan. Ulpian, the great Roman jurist, captured not only the presumption of innocence but also the problem of proving a negative at trial: ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit: “the burden of proof is on him who alleges, not on him who denies; since, by the nature of things, there is no way to prove denial of a fact.”

In England, as early as the ninth century, we find Alfred the Great stating that “in cases of doubt one should rather save than condemn,” and in 1471, Chief Justice John Fortescue said, “indeed I would rather wish ten evil doers to escape death through pity, than one man to be unjustly condemned.”

It is perhaps worth noting that Ulpian, the Prefect of the Praetorian Guard, was later fragged by his own men, in part because he tried to stop them using torture to extract confessions.

So, when it comes to defining N—the number of guilty men we set free—among both Romans and English 10 is popular. That said, any criminal justice system unwilling to confine N would be one that had no system of punishment at all. If you’re willing to let an infinite number of guilty people go, there’s no justice either. This is at the root of our fraught debates about securing sexual offence convictions. It recognises, too, that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve.

This explains why tends to float up and down throughout English and Roman history. 10 is the most common figure, but Romans sometimes expressed themselves, like Trajan, in terms of a 1-​for-​1 trade. English jurist Matthew Hale spoke of 5-​for-​1, and in a 1951 judgment—R v Patel—the Court of Criminal Appeal noted the difficulty of “trying to steer between the Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one.”

When considering N, then, it is wise to keep this balancing act in mind. That goes with remembering its difficulty, and an acknowledgment of its fragility. Once achieved, moral progress doesn’t simply take root. Nurturing it means ongoing effort.