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Books > Law > Jurisprudence & general issues > Legal profession > Legal ethics & professional conduct
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Presumption of Innocence in Peril - A Comparative Critical Perspective (Hardcover)
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Presumption of Innocence in Peril - A Comparative Critical Perspective (Hardcover)
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This book explains the historical significance and introduction of
the presumption of innocence into common law legal systems. It
explains that the presumption should be seen as reflecting notions
of moral comfort around judgment of others. Specifically, when one
is asked to make a judgment about the guilt or otherwise of a
person accused of wrongdoing, the default position should be to do
nothing. This reflects the very serious consequences of what we do
when we decide someone is guilty of wrongdoing and is not a step to
be taken lightly. Traditionally, decision makers have only taken it
when they are morally comfortable with that decision. It then
documents how legislators in a range of common law jurisdictions
have undermined the presumption of innocence, through measures such
as reverse onus provisions, allowing or requiring inferences to be
made against an accused, redefining offenses and defenses in novel
ways to minimize the burden on the prosecutor, and by dressing
proceedings as civil when they are in substance criminal. Courts
have too easily acceded to such measures, in the process permitting
accused persons to be convicted although there is reasonable doubt
as to their guilt, and where they are not guilty of sufficiently
blameworthy conduct to attract criminal sanction. It finds that the
courts must be prepared to re-assert the prime importance of the
presumption of innocence, only permitting criminal sanctions to be
imposed where they are morally certain that the accused did that of
which they have been accused, and morally comfortable that the
conduct being addressed is worthy of the kind of criminal sanction
which prosecutors seek to impose. Courts must be morally
comfortable about the finding of guilt, and the imposition of the
criminal penalty in a given case. They have lost sight of this
moral underpinning to criminal law process and substance, and it
must be regained.
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