Journal

Whatever happened to the presumption of innocence?

By on
56

Sometimes there can be smoke without fire, says Staffordshire University law student Naz Khan

In an age of ‘citizen’ journalism and rabid social media posts, the legal principle known as ‘the presumption of innocence’ is seriously under threat. The presumption, enshrined in the UK’s Human Rights Act, is a fundamental principle of our criminal law system. It is one that is so well-known, even to those who have little knowledge of our legal system, and yet appears to be so poorly upheld. Individuals are repeatedly condemned in the eyes of the public regardless of whether they have been in the eyes of the law.

Back in 2014, BBC News reported that Cliff Richard was being investigated by the police following an allegation of sexual assault on a child dating back to the 1980s. A presumption of guilt and public vilification ensued despite the fact that Sir Cliff was never charged.

Michael Jackson has also been publicly challenged. In 2005, in California, the pop sensation was tried for several allegations of sexual assault of young boys but was acquitted of all charges. However, he is still widely considered and branded a paedophile by sections of the media and public. Serious new allegations against the late popstar have surfaced too late for Jackson to face justice for a second time.

Meanwhile, R. Kelly, another American singer, songwriter and producer has recently been charged with sexually assaulting various teenage girls after a history of sexually-related charges and allegations of a sex ‘cult’.

The presumption of innocence, an integral part of the right to a fair trial, exists as a guarantee of an individual’s innocence if and until they can be proven guilty beyond reasonable doubt in a court of law. And as we all know, the burden of proof lies with the prosecution. But the presumption is systematically ignored as the cases of Sir Cliff, Jackson and many others demonstrate. The media publishes names, and commentators on social media defame.

Sir Cliff had the resources and wherewithal to fight back. In 2018, in the case of Cliff Richard v BBC and SYP, he recovered substantial damages from the BBC and the police force concerned for the investigation and making it public.

The decision in the Cliff Richard case reignited calls for legislation to protect suspects, to protect the presumption: a private members’ bill, the Anonymity (Arrested Persons) Bill, was debated in the House of Lords last month. The Bill proposes to make it unlawful to name individuals at the ‘suspect’ stage, that is, before they have been charged. Some argue that the case and any legislation that followed would unduly curtail press freedom and obstruct the public’s right to know.

Want to write for the Legal Cheek Journal?

Find out more

Legal commentator Joshua Rozenberg has argued that such a law would encourage “secret arrests” and “would amount to a major change in the criminal justice system in England and Wales”. He said: “The solution is not to confine news of arrests to the internet rumour-mill”, but rather it is for the public to understand that “sometimes there can be smoke without fire”.

The counter-argument, however, is that there needs to be greater understanding of the effect that such reports can have on a person’s life: damaging reputations, livelihoods, the effect on immediate family, on personal health: the 78-year-old Sir Cliff reported ill-health following the allegations — including shingles and insomnia. He also acknowledges now a paranoia with being seen associating with young people and avoids having any photographs together.

When the public take on the role of adjudicator in matters of suspected criminality, the large brands feel pressure to react accordingly. Certain radio stations in Australia, Canada, New Zealand and the UK have pulled Michael Jackson’s music from airing in the wake of Leaving Neverland, a film documenting serious allegations of sexual abuse against the popstar. In response to the ongoing R. Kelly scandal, Spotify has removed his music from their playlists. Thus we see corporations too taking on the unofficial role of judge. Through protecting their brand image, these corporations cast judgment upon criminal allegations when a court of law has yet to do so.

While a court of law is susceptible to error, surely it would be better to leave the responsibility of apportioning blame to it rather than to public opinion. A court of law is designed with this purpose in mind, decisions based on evidence rather than emotion. Of course, public opinion does have a role to play in raising awareness surrounding certain topics, including that of sexual abuse, but “mob justice” has no checks to ensure impartiality and little or no power to verify the credibility of alleged truths.

Naz Khan is a final year undergraduate law student at Staffordshire University and an LLM candidate at Durham University. Upon completion of his masters, he aspires to work as a barrister.

Want to write for the Legal Cheek Journal?

Find out more

Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

56 Comments

Anonymous

The right to be considered innocent until proven guilty is of course sacrosanct. However, rightly in my view, it applies only to the criminal trial process. An acquittal in a criminal trial does not stand as a bar to subsequent civil proceedings nor, in my view, should it apply to a decision about who I invite to dinner or chose to be rude about on the internet.

We all take on the ‘unofficial role of the judge’ in many aspects of our lives. In our choice of friends, partners and purchases. Generally it is not harmful.

I take your point about mob rule – the internet has its downside.

Anonymous

The presumption of innocence applies in civil matters to, it is just that the burden of proof is lower. Its still down to the claimant to prove their case though.

Anonymous

You’re right insofar as there is a burden of proof at trial. However I’d say there are a few important differences between the criminal presumption of innocence and the civil burden of proof:

First, if a civil Defendant does not directly address something in his defence, he is taken as admitting the fact. The Claimant does not have to prove it.
Second, if there is no defence, the Claimant is entitled to judgment in default. The Claimant need prove nothing to get that judgment.
Third, the availability of interim remedies (which may, once obtained, mean that a case in reality need go no further) means that a Claimant could get significant relief without proving anything.

I think the presumption of innocence is a uniquely criminal concept.

Anonymous

The term ‘presumption of innocence’ is used only for criminal cases, but the concept applies to all cases, its just that the burden of proof is different. The examples you give where a claimant doesn’t have to provide proof are all cases where the claim isn’t contested (incidentally I think its wrong of the courts to give judgement in default where no defence is lodged).

Anonymous

Nonsense. That is simply the burden of proof. Not them same thing.

Anonymous

Different burden of proof, same concept.

Anonymous

It really really isn’t. Burden of proof is almost never decisive. Balance of probabilities; very different indeed from beyond reasonable doubt. Low burden on claimant, high burden on defendant.

Anonymous

It really, really, really is. Its just different burdens of proof. Ths concept is the same – the burden of proof is on the claimant. Try raising a contested civil claim with no evidence and see how far you get.

Anonymous

Believe me I’ve run enough civil claims to know what I’m talking about. At trial in a civil matter, the incidence of the burden of proof is almost never decisive. The judge just decides what was more likely. A million miles from beyond reasonable doubt.

Anonymous

You’re agreeing with me. The burden of proof is still there, but is different from criminal cases. It is indeed balance of probabilities, so of course the judge will decide what is more likely to have happened. But its still for the claimant to prove their case on the civil burden of proof. So the concept of innocent until proven guilty still exists, just the terminology and burden of proof differ from the criminal courts. Its certainly not a million miles away. If you’ve run as many civil cases as you say you have (and run them properly), you’ll know what is likely to happen if you as claimant offer no supporting evidence in a disputed civil claim.

cathryn watters

this is such a good article – sadly though we also have the civil standard of law causing as much harm within regulation of our health care professionals. “The balance of probabilities” is open to a lack of objectivity and interpretation also if the “defendant” is not able to get any evidence to support their innocence then the balance is that they are guilty. Press releases are given prior to the case being proven and only a statement will be released after the person is found innocent if they request it – they do not know this is an option so don’t request it thus the media has them proven as guilty forever. EVERYONE has a duty to protect the innocent. It seems criminals have more protection that our healthcare professionals currently.

Margo neilly

Yes I echo that, many lives are being destroyed through years and years of civil proceedings which are costly and damaging to those unfortunate to be trapped in them. And they do trap and consume lives. It becomes and impossible to recover from the harm sensational publicity causes. Regulators are required in all professions and most especially in health care. However they need be fit for purpose and really need to care better for nurses that are subject to their investigation and sanction.

Anonymous

Yes, I wonder whether the civil standard of proof is really a high enough threshold when one’s career is in the balance. To many people treat it as a situation where the accused is expected to prove their innocence.

Anonymous

Our earth is dying!!!

End capitalism now!!!

Vote Corbyn!!

Anonymous

The year is 2027. After the release of chemical weapons in a major US city the year beforehand resulting in the deaths of approximately 770,000, the world is very much at the brink of nuclear war. In retaliation US president Peyton Manning has already authorised a number of strikes against targets in Yemen, Mali, and Australia. It is argued that such strikes were not justified, and in themselves killed an estimated 35,000 civilians. Whatever happened to the presumption of innocence?

Anonymous

Straw man argument.

Anonymous

You f*cking maniac.

Anonymous

Yes. Do you want to come round to my flat for a glass of Ribena and a slice of carrot cake?

Anonymous

Only if we can do so in the nude

Anonymous

Of course my darling. I wouldn’t have it any other way. I might wear one sock though. On my left hand.

Anonymous

Righty hoo.

That’s a great start, but you need to develop the characters more. For example, what was the motivation behind Bernard Manning’s successful run for the Oval Office?

And then there’s verisimilitude. You’ll need to work on the narrative connection between Mali and Hobart.

Good luck. But it’s not one for us.

Senior Managing Partner at Kirkland, Swain and Gotshal

As someone already noted, the presumption of innocence has more to do with legal standards and the presumptions taken in a court of law than they do in the public sphere.

The general public generally doesn’t see people as ‘either’ innocent or guilty and generally don’t have an active presumption as to whether someone is one or the other. People operate on a spectrum.

Also, the majority of the time that this ever matters is in regard to famous people. I think that is/and should be the cost of being so. You have a duty not to lie to the people who revere you. Mob rule is unfortunate collateral.

Where the layman/regular people are concerned, I agree the position should be that names are hidden at trial. The public have no right to know and, given the damages faced by wrongly accused individuals in the past, this is not outweighed by the public’s right to be informed. As such, the solution is to either (i) hide the identity or (ii) ensure that evidence, news etc is disseminated accurately to the public such that they actually have the capacity to judge. Given that (ii) is, in the current state of sensationalist news headlines and generally crap reporting all round, I agree that (i) must be the answer.

Good article, good luck on your LLM.

Anonymous

A really good article.

What would be useful to understand is why anonymity is not proposed to be granted to a suspect until their conviction, rather than charge?

Rightfully, victims of offences such as rape have anonymity for life. However, a suspect can be wrongly accused, arrested, charged, tried and then acquitted – only for their life to have been turned upside down.

If a judge believed that there were grounds to lift the veil of anonymity in a particular case, they could then do so.

Anonymous

Victims and witnesses are granted anonymity in circumstances where they might not otherwise come forward. In other words, as an exception to the general rule of open justice, they are granted anonymity for public not private benefit- so that justice is not obstructed. A defendant will be tried whether or not he or she is anonymous – there’s no public interest to keeping them anonymous.

Imo it’s important for everyone, including those accused of crimes, that justice continues to be open. Closed proceedings and secret trials are not good for defendants! Everyone should be able to scrutinise the justice system.

Anonymous

Open justice doesn’t require the publication of names, addresses, etc.

During trial, the press could refer to the suspect as Mr/Ms A and then, at conclusion of the trial, the veil could be lifted if the defendant was found guilty/the judge felt it was actually in the public interest.

In the current system, where one can be arrested and named immediately, it goes to the heart of the presumption of innocence until proven guilty as Google becomes the main source of anyone’s background.

Lord Titmuss Wall Banger of Etherbridge

You can walk into (almost) any trial anyway and find out the name of the accused pretty easily.

Transparency and due process.

There to benefit the accused as well.

Anonymous

Open justice means that trials and evidence are a matter of public record. It’s not exactly open if it’s a secret who was on trial.

Anonymous

I think we need to transition to a low carbon economy

I think we need socialism

I think we need JEREMY CORBYN

Tax City greed at 75% income tax!!

FOR THE MANY, NOT THE FEW!

Anonymous

This shows a complete misunderstanding about “innocent until proven guilty” and sadly one that is getting too much traction these days. The presumption is no wider than this, in criminal proceedings, and only in criminal proceedings, the court presumes innocence and will require that allegations are proved against the defendant to the requisite standard by the prosecution until which time the defendant is not treated as having committed the crime. Beyond that the concept has no application. If someone wants to act on the basis that an accused or someone under investigation is a criminal then they can, and if the “criminal” wants recourse he/she needs to look to contract, tort or public law to find a basis for the same.

Anonymous

Its a common misconception that innocent until proven guilty applied only to criminal matters. The concept of the accuser/complainant having to prove their case applies across the board, only the terminology differs.

Anonymous

No. It is just an evidential presumption in criminal proceedings. If requirements to establish facts before action are needed in other situations they are called different things because they are different things. Imprecision is a terrible quality for a lawyer.

Anonymous

Yes. The terminology is different but the concept is the same. Onus is on the accuser/claimant to make their case. As a lawyer I’m surprised you don’t know that. Imprecision isn’t a quality, but stupidity is worse.

Anonymous

Except it isn’t, in that one can usually treat the other party as a wrongdoer without the need for a determination, save in some limited categories. It is only if there is a need for determination prior to a remedy that burden of proof issues are engaged.

Anonymous

Except that it is. If the matter is contested then the claimant will of course have to prove their case to the civil standard of proof.

Anonymous

But within the civil rights framework one can act on the basis someone is a wrongdoer without establishing it. You don’t need to go to court to establish it. So ‘if the matter is contested’ ignores the wider issue which is at the heart of this turd of an article.

Anonymous

“He who asserts must prove”.

Anonymous

Exactly, ‘he asserts must prove’. Its as simple as that. One can act act on the basis that someone is a wrongdoer in the same way that one can act on the basis that someone is the tooth fairy – doesn’t necessarily make it true.

Anonymous

But darlings, one does not have to “assert” if one can act without recourse to civil litigation. I can treat Mr X as a criminal if I want to and deal with him on that basis in my business dealings. I don’t have to consider him innocent until I have proved him guilty or anyone has proved him guilty.

Anonymous

You do have to assert, and it has to be independently proven, or he isn’t a criminal. You can treat people like criminals if you want to or you can treat them that way in your business dealings, but that would be mere eccentricities on your part, it wouldn’t make the person a criminal.

Ciaran Goggins

Jefferies is a poor case to cite, he changed his alibi, publicly, in a high profile murder case. As for anonymity, all it takes is a challenge at Strasbourg. I was to meet with Lord Paddick on my last trip to England.

Anonymous

Well-written article on a pressing issue in today’s society.

Good luck on your LLM.

Andrew

I am entitled to conclude on the available evidence that you have misunderstood the concept of the presumption of innocence in law and that your arguments are superficial. Just as I am entitled to conclude on the available evidence that Michael Jackson was a paedophile.
However, my personal view on such matters is different from a trial process that requires, in crime, that the state, in the form of the Crown, prove it’s case so that a jury are sure of guilt. If the Crown do not do that then the accused is to be acquitted. That’s the presumption of innocence.

Anonymous

Exactly, Andrew. Only the inane and superficial yell “innocent until proven guilty” outside of the criminal courtroom.

Anonymous

You and the inane and superficial anonymous at 10.03pm have musunderstood the concept of innocent until proven guilty Andrew. The concept applies across the board, not just in criminal matters. You can of course draw whatever conclusions you wish about given cases, but these are merely your opinions and have no factual bearings on guilt.

Anonymous

Good article. The presumption of innocence is something the scope of which is widely misunderstood (as some of the comments here show, even by a lot of lawyers). It is gradually being worn down by i) politicians who want to be seen to be tough on crime looking for easy convictions, ii) gender warriors who can’t accept that males accused of sex crimes might be innocent (see the article about the magistrate’s tweets earlier this week), iii) bullying claimant lawyers who think if they shout their case loud enough that makes it true and iv) people who think they can reach a conclusion without logic or evidence, and who haven’t been taught to take opposing viewpoints and arguments on board.

Anonymous

Sometimes there isn’t even smoke, never mind fire. The problem is that there are some people who are wired in a way that they believe an allegation if they see it in writing, especially if it fits preconceived ideas they might have. They tend to seek information supporting the allegation and dismiss any information which doesn’t support the allegation. People are worried about not ‘believing’ allegations which might be true in case they look stupid or are seen as in some way to be supporting he thing that the person is accused of.

Anonymous

If I think Mr X is a criminal I can treat him as a criminal in my contracts, my business dealings etc. I don’t have to care about “innocent until proven guilty” and I don’t have to go near a court so burdens of proof are irrelevant. That is why most of the bleatings on this thread are just tosh of the highest order. If Mr X does not like it he can sue me. Keep “innocent until proven guilty” where it belongs, in criminal courts and only there.

Anonymous

Innocent until proven guilty applies across the board, not just in criminal courts. You’re entitled to assume that its ‘irrelelevant tosh’, but doing so will mean people are likely to think the same of your opinions. You are of course perfectly free to write baseless contracts accusing people of being criminals or to treat your business partners as criminals for no reason, but these would be acts grounded in fantasy and not reality.

Anonymous

You can;t reason with the type of stupid. You know they stupid ones that don’t know they are dim.

Lawyer X

There are a number of good reasons to publish the name of a suspect prior to conviction: sometimes it is necessary to publish the name of the suspect in order to catch him/her. See any “most wanted” list, or the current story about the kidnap/rape allegations in East London. It is also sometimes necessary in order to protect the public: dangerous suspect on the loose – do not approach type publicity.

Anonymous

There are other good reasons not to:

Vigilante justice
Harassment
Mistaken identity
Reputation damaged forever even if vindicated later “no smoke without fire…”

Archibald Pomp O'City

I truly can’t imagine what people like Cliff Richard must have gone through. Shingles and insomnia? I’d probably have hung myself from a tree by day 5.

Join the conversation