I recently gave a talk to some primary school pupils about ‘life as a lawyer’ and, amongst many an intriguing question they asked, was the side-splitting………’Yeah I was wondering how much you earn an hour…’ 🤣
Despite being destined for the stage, this young lad’s question is not the most common that I am asked. No, rather it is that timeless classic….’How can you sleep at night knowing that you’re defending a (insert crime here) _____rapist, armed robber, thief, murderer et cetera‘.
Mercifully, the illiterati rarely get issues such as this factually correct. Why? Firstly because, as a race we are programmed to be prejudicial (working often on the ‘no smoke without fire’ cliché) but secondly, crucially and the subject of today’s column, is the ‘presumption of innocence’. After all, how can I ‘know’ anything when the accused has told me that he is not responsible for the crime alleged..??
One of the most important doctrines of our (and many other) criminal justice systems is that those accused of crimes be deemed/presumed innocent and, equally crucially, remain so until (the Crown) prove them guilty. It is not, nor ever has it been for an accused to prove their innocence. Not that you’d imagine as the imbroglio surrounding this issue is incessantly ever-present.
The Supreme Court of Canada gave, in Oakes (1986) 50 CR (3d) 1 (SCC), a very useful guide to the tenet, viz.:
‘The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise’ – per Dickson CJ at 15
There was, therefore, a reinforcement that in order to protect the rudiments of our civilised society, we must deem individuals as not having committed any wrongdoing until corroborated evidence suggests otherwise and persuades a judge and/or jury that the evidence is believable and substantial and ‘beyond reasonable doubt’. To suggest otherwise would be an affront to our way of living and to have a society where we simply accept one random accusatory remark, then determine guilt and pass sentence, would be preposterous. To say nothing of dangerous for the sake of our society and co-existence with our fellow man.
Of course then there is Article 6 of the ECHR which establishes the right to a fair trial, embedded in which is the presumption of innocence. Here, we have our own ‘bespoke’ protections via the Scotland Act 1998. Yet there appear to be consistent views that seems contrary. Sometimes in the extreme. An idiosyncratic approach which appears as baffling as it is dangerous. Referring to individuals accused of sexual assaults as ‘rapists’ before an iota of evidence has been led, or my personal favourite – that headline ‘Thief Acquitted’ 🤷♂️.
There remain many an individual who feel ‘guilty’ without even venturing near a courtroom. Largely because the faceless keyboard warriors are out there, in their squillions, all proffering useless, uneducated tripe by way of ‘quasi-legal’ opinions which they have based on 20 minutes trolling Google. Oh and for them it appears that there must be a ‘presumption of guilt’. Oddly, I don’t recall that being taught at Law School. Trial by media – social and mainstream – can only get progressively worse as its exponential rise continues. I worry about where it is taking us.
Paradoxically, there are those of us that have been engaged for decades fighting on behalf of those who cannot fight for themselves and never forgetting the ‘presumption’ that they are and shall remain ‘innocent’ until proven otherwise.
As I have said repeatedly here on these very pages, I shall never stop doing so whilst there is a breath in my body.
PS – I never answered that young lad 😉