The Ideal of the Presumption of Innocence

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and the proper role of prosecutorial discretion.     

Rethinking the presumption of innocence

This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. It explores the idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable.

Responses

This essay is a response to the excellent contributions to the double special issue of Law and Philosophy on my book The Ends of Harm. I further defend the Duty View of punishment outlined in the book, responding to criticisms of that view. I also challenge the plausibility of retributivist accounts offered in response to the challenges to that view developed in The Ends of Harm.     

Crimes and Security

This essay considers the role that the value of security might play in criminalisation. While endorsing security as a legitimate rationale for the creation of a criminal offence, it examines some existing offences that are created or structured in a particular way for security reasons. This is done through a two‐stage analysis. Stage one considers the consequences of adopting an offence or offence definition if it was interpreted ideally and complied with perfectly. Stage two considers how we can expect the offences to operate in the real world given imperfect compliance and non‐ideal interpretation.     

The Presumption of Innocence and the Human Rights Act

There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.