THE PRESUMPTION OF INNOCENCE UNDER ATTACK

• Published in: New criminal law review Vol. 20; no. 4; pp. 569 - 615
• Main Author: Gray, Anthony Davidson
• Format: Journal Article
• Language: English
• Published: Berkeley University of California Press 01-10-2017; University of California Press Books Division
• Subjects: Anxiety; Burden of proof; Due process of law; Guilt; Innocence; Law enforcement; Legal defense; Legislation; Legislatures; Morality; Offenses; Presumption; Prosecutions; Public safety; Reasonable doubt; Terrorism
• ISSN: 1933-4192; 1933-4206
• DOI: 10.1525/nclr.2017.20.4.569

This Article documents the increasing range of instances in which the presumption of innocence has been abrogated by legislation. Legislatures are responding to fears around terrorism and general community anxiety about law and order issues by increasing resort to reverse onus provisions. While the right of the legislature to enact laws thought to further public safety is acknowledged, the presumption of innocence is a long-standing, fundamental due process right. This Article specifically considers the extent to which reverse onus provisions are constitutionally valid in a range of jurisdictions considered comparable. It finds that the approach in use in some jurisdictions studied, testing the constitutionality of reverse onus provisions on the basis of whether they practically permit an accused to be found guilty although there is reasonable doubt about their guilt, has much to commend it. However, this is part-solution only, since legislatures may then be driven to redefine crimes to seek to effectively cast the burden of proof onto an accused by redefining what is in substance an element of a defense. Thus, it favors a substantive approach to determining what the prosecutor must show to obtain a conviction, utilizing concepts such as moral blameworthiness and actus reus/mens rea.