Boris is right. Tinkering with the presumption of innocence is, unfortunately, a minor change in the law
Boris Johnson has called for a change in the law. He wants to shift the burden of proof on those accused of travelling to Iraq and Syria to join ISIS. No longer will the prosecution be required to prove that they intended to join ISIS. Rather the accused will have to prove that they travelled there for innocent purposes. There has been near universal condemnation of Boris's proposals. The Prime Minister called it a knee-jerk reaction. Nick Clegg was not a big fan either. In addition to rejecting his proposals commentators on both the left and the right have taken issue with Boris's statement that this was a “minor change” in the law. They argued that instead it was an attack on this hallowed principle that is the presumption of innocence. The fact Boris did not realise that was further proof that he is unfit to become Prime Minister.
However, Boris is completely right. Not about the substantive proposal but about the fact it represents a minor change in the law. The fact of the matter is that the presumption of innocence has in the past few decades been severely eroded. In 1935 we were told by the Lord Chancellor Viscount Sankey that “throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt” [1]. There were only two exceptions: (i) the defence of insanity and (ii) statutory exceptions.
How often did Parliament by statute make exceptions to this golden thread? Andrew Ashworth and Meredith Blake attempted to find out in 1996 [2]. They look at how many of the offences triable in Crown Courts derogated from the presumption of innocence. It was not 5%, 10% or 20%. Out of 540 offences, 219 involved some form of departure from the presumption of innocence. That's just over 40%! In the Magistrates' Courts the position was hardly better. There, the defendant bears the burden of proving “any exception, exemption, proviso, excuse or qualification” [3]. At this point one can ask whether the exception has swallowed the rule. So Boris was not wrong when he described it as a minor change in the law.
The situation has not really gotten better since 1996. Parliament continues to reverse the burden of proof on a number of offences. In one respect, however, the situation has gotten better. Previously, if Parliament imposed a reverse burden of proof the courts would just have to apply it. However, following the coming into force of the Human Rights Act, the courts have been able to de facto nullify some of those reverse burdens.
For example in R v Lambert [2001] UKHL 37, the House of Lords was considering a provision of the Misuse of Drugs Act which required a defendant found in possession of a package containing drugs to prove that he did not know that it contained drugs. If the defendant failed to discharge that burden he would be found guilty of possession of drugs. The House of Lords held that this was an unjustfied infringement of the presumption of innocence. So, this provision was read as merely requiring the defendant to adduce evidence that he did not know the package contained drugs. The burden would then be on the prosecution to prove beyond reasonable doubt that this evidence was untrue.
Those wanting to repeal the Human Rights Act (and withdrawn from the European Convention on Human Rights), whilst still adhering to the presumption of innocence, should think carefully about that.
In the meantime the outrage sparked by Boris's comments should be directed to adopting the proposal the Criminal Law Revision Committee made in 1972: that there should not be reverse burdens in English criminal law [4].
1 Woolmington v DPP [1935] AC 462 at 481
2 “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306-317
3 Section 101 Magistrates' Courts Act 1981
4 Criminal Law Revision Committee, Eleventh Report, Evidence (General), Command Paper 4991 of 1972, para 140
Rajiv Shah is a PhD student in Law at the University of Cambridge.
No, Boris - we are never guilty until proven innocent
The proximity of the 800th anniversary of Magna Carta next year makes Boris Johnson's Telegraph column from Sunday even more shocking. His plan to arrest anyone who travels to Syria or Iraq without 'good reason' utterly abandons the presumption of innocence. Instead, all travelers would be presumed guilty – and guilty of the extremely serious charge of terrorism – unless they could somehow convince 'the authorities' otherwise:
We also need to be far more effective in preventing British and other foreigners from getting out there…We need to make it crystal clear that you will be arrested if you go out to Syria or Iraq without a good reason. At present the police are finding it very difficult to stop people from simply flying out via Germany, crossing the border, doing their ghastly jihadi tourism, and coming back. The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a “rebuttable presumption” that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.
Boris of course has the laudable aim of curbing the jihadists. But that is just the sort of ambition that has excused too many careless erosions of our ancient freedoms. Already he calls for the return of control orders and laments how hard it is to press charges against British citizens without evidence; as if the assumption of innocence until proven otherwise has not acted as the ultimate safe-guard of citizens against radicals throughout modern history.
According to the Mayor, such controls and assumptions need merely a 'swift and minor' change in the law. Are our Magna Carta liberties to be so swiftly and so triflingly abandoned?
Boris's BOGOF
Boris Johnson’s putative return to the Commons overwhelmed any publicity for his, or rather Gerard Lyons’s, strategic analysis of the UK’s in/out EU options: The Europe Report: A Win-Win Situation, released 6th August. Four possible outcomes are envisaged: staying in either a largely unreformed EU or one reformed to the UK’s liking. The two departure options are seen as (a) good EU relations and pro-growth UK reforms and (b) poor EU relations and an inward-looking UK. Lyons makes the good point that “the UK can only achieve serious reform if it is serious about leaving, and it can only be serious about leaving if it believed that is better than an unreformed EU.” The title would have you believe both staying in a reformed EU and leaving are “Win Situations” that we can either choose one or use it to achieve the other, i.e. Buy One and Get One Free.
Lyons has produced an important review of the issues facing each sector but, at the end of the day, his conclusions are based on simple assumptions of the economic outcomes from each option. We do not need 108 pages of report, and 130 pages of appendices, to be told that the two high growth scenarios are more attractive than the two low growth ones. Furthermore, the conclusion that the two high growth scenarios are economically equivalent is similarly based on heroic assumptions. Lyons’s Panglossian vision of the UK outside the EU and reforming itself begs a great number of questions. The world is not ordered according to the way we order ourselves: trading with the EU will still be governed by EU regulations, likewise the US.
The paper has a number of failings: in particular it is not specific about the EU and UK reforms that would be needed, still less how they could be achieved and how likely that would be. For example, the only hope of securing the EU reform the UK seeks is for the UK to show benefit for EU as a whole, not just the UK. UK proposals to improve the EU market for financial services looks, to the rest of the EU, like UK self interest. We know that the rest of the EU does not accept the UK arguments because it is outvoted every time.
How would, as Lyons suggests, the UK leave the EU whilst at the same time improving the UK’s EU relationships? The chilling legal issue is EU Article 50 under which the remaining members decide the terms of the separation with no involvement of the departing member. Obviously there would be negotiation so that may not be as ugly as it seems. Trade would continue and we import more from the rest of the EU than we sell them but that is beside the point: could the UK protect its EU exports better than it could reduce its EU imports? De Gaulle reckoned that the UK needed continental Europe more than vice versa and the 1960s proved him right.
We should welcome this report for its discussion of many of the issues but we cannot rely on its findings. The City really does need to come up with a plan to protect its future but this is not it.