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Description: IMG_20141122_052850GUEST WRITER

PRESUMPTION OF INNOCENCE: IS IT A RIGHT OR AN ILLUSSION?

June 5, 2020

By: BANKOLE CLIFFORD EKUNDAYO MORGAN, HUMAN RIGHTS ADVOCATE.

(The thoughts expressed in this article are purely and entirely the thoughts of the author)

In the criminal justice system generally, criminal procedure is the explanation of how criminal law is applied in practice. A key concept in criminal proceedings is known as the presumption of innocence. It is the legal concept that posits that the accused is presumed innocent until the prosecution proves its case against him beyond reasonable doubt.  The accused loses such integrity and dignity only when he is convicted. That is why after his plea an accused can remain silent throughout his trial. The prosecutor by his conduct in proceeding with his case can suggest directly or by implication that the accused is not innocent or the trial Judge may make comments especially in a Jury trial to suggest that the accused is to be considered guilty even before verdict. However, this will be unacceptable and the principle may then lose its ability to be real. The right to the presumption of innocence is one of the guarantees in relation to legal proceedings contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), of which Sierra Leone is a signatory.

PRESUMPTION OF INNOCENCE IN SOME JURISDICTION IS A CONSTITUTIONAL RIGHT

In Sierra Leone, presumption of innocence is a constitutional right, and the sacred legal document known as the Constitution of Sierra Leone, 1991 made provision for presumption of innocence in sections 23(4) and 23(7) respectively.

Section 23 (4) provides that:  “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty” and Section 23(7) provide thus: “no person shall be held to be guilty of a criminal offence on account of any act or omission which did not, at the time it took place, constitute such an offence”. Following due process of the law, an arrested person should by law be presumed to be innocent until proven guilty in a competent court of law. Even with the silence of the accused, except for certain exceptions, the burden of proof does not shift. It is important to note that where the principle is not abused and is observed, it is not to frustrate the trial but give it legitimacy.

WHERE THE LAW PERMITS THE SHIFTING OF THE EVIDENTIAL BURDEN

In certain circumstances and sui generis laws, the law permits the shifting of the evidential burden. In that case, the Prosecution only needs to establish certain facts and it will then be the defence who has to prove the contrary or he will be guilty. For example, in various provisions in the Anti-Corruption Act, the evidential burden is placed on the accused. An Example is the offence of Unexplained Wealth. Once the Presecution proves existence of the wealth, it is the defence who has to prove that the wealth is not unexplained wealth. In other words, he has to explain. The same situation exists with receiving an advantage. It is important to note that even with offences where evidential burden shift, the legal burden to prove the guilt of the accused beyond reasonable doubt will remain with the Prosectition. These are example of Provisions in the Anti-Corruption Act, 2008 that the evidential burden can shift: `26(2), 27(1), 27(2), 28(4) & (5), 44(2), 53(9a), 92(2), 94, 97, 98, and 129’.

THE GENERAL RULE IN CRIMINAL PROCEEDINGS ON THE BURDEN OF PROOF

In the criminal justice system, there is a general rule in criminal proceedings that the prosecution bears the burden of proving all the ingredients of the offence. In other words, the accused/defendant does not have to prove his/her innocence. The reason for the prosecution bearing such a burden is linked with the Presumption of Innocence. In Sierra Leone for instance, by law and practice, when an accused is charged with an offence, he benefits from the presumption of innocence as provided for by S.23 (4) of the Constitution of Sierra Leone, 1991. It implies that the presumption of innocence in Sierra Leone is a constitutional principle which is binding in the criminal justice system. Further, procedural due process of the law depicts that presumption of innocence should be observed, as it protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime charged. The presumption of innocence is one of the most important and ancient rights embodied in criminal justice systems around the world.

PRESUMPTION OF INNOCENCE IS KEY IN THE PROTECTION OF HUMAN RIGHTS.

Presumption of innocence is a fundamental principle in the protection of human rights. In the respect for the protection and promotion of human rights, presumption of innocence essentially is inalienable. The presumption of innocence is one of the most important and ancient right embodied within the criminal justice system of Sierra Leone. In actual fact, this principle is meant to guide the prosecution as well as the defence lawyer(s) in all criminal proceedings. However, the term “presumption” should not be confused with the concepts of rebuttable or non-rebuttable presumption. In general, a presumption is a rule which permits a court to assume that a fact is true until a preponderance of evidence disproves or outweighs (rebuts) the presumption. A presumption is rebuttable if it can be refuted by factual evidence, on the contrary, it is conclusive or irrebuttable if the presumption does not provide for a way to be disproved.  With this principle, though there are equitable principles, however, I can safely state here boldly that law is not about conscience but evidence, and that generally, in court proceedings evidence decides arguments.

THE BURDEN OF PROVING THE CHARGE AGAINST THE DEFENDANT IS ON THE STATE

The right to be presumed innocent until proved guilty is one of those principles that influences the treatment to which an accused person is subjected from the criminal investigations through the trial, up to and including the end of the final appeal. This guarantees that guilt cannot be declared until the charge has been proven by the state. The criminal justice system of Sierra Leone sets as a standard that the burden of proof is entirely on the state and there is no duty on the defendant to assist the state in discharging its burden. This standard applies to each and every element of the crime. Relating the concept of presumption of innocence to the criminal justice system of the United States of America, there is a locus classicus case which is Re WINSHIP, 397 U.S 358 (1970). In this case the U.S. Supreme Court made it expressly clear that the presumption of innocence is a constitutional principle which is binding on the states, saying that “the Due Process clause protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime charged.”

THE PROMINENT CASE OF WOOLMINGTON v DPP (1935) UKHL

The principle of ‘Presumption of innocence’ is believed to have developed from decisions of judges otherwise known as common law. This principle was established in a celebrated case called WOOLMINGTON v DPP (1935) UKHL. In this case Lord Sankey in what was described as his “Golden Thread” speech made it clear that in a criminal case, the prosecution has the legal burden to prove that the accused is guilty based on the standard of beyond reasonable doubt. Thus, it can be concluded that by imposing such a strict standard, the legal burden is considered a substantial and sizable burden, where failure to prove beyond reasonable doubt, the burden would not be discharged. While the accused has no more than an evidential burden to raise a live issue at trial, which would most likely be a form of defence that the accused would attempt to rely on. While the legal burden comes equipped with a standard of proof to prove beyond reasonable doubt, there is no standard of proof imposed on the evidential burden, thus not a burden of proof.

PRESUMPTION OF INNOCENCE AND THE RIGHT TO REMAIN SILENT

In law and practice, the presumption of innocence comes with the significance that the accused must have the right and choice to remain silent and there must be no need for him to participate in any way in the presentation of evidence.  In essence, the presumption of innocence guarantees that the accused has the benefit of doubt, which has to be declared in the final decision by the presiding judge.  During criminal proceedings, it is very important for the presiding judge to ignore all pre-trial evidence of guilt and determine the guilt or innocence by evaluating only the evidence presented at the trial. The trial Judge can countenance pre-trial evidence of guilt in an instance where the accused had made a confessional statement. Generally, when one is accused of committing an offence, there is that community perception that the accused person is a criminal that is judgement has already been passed by community members though a competent court has not proven that.  It is due to such perception from some members of the public that the presumption of innocence implies that people who are accused of a criminal act must be treated in accordance with due process of the law. The dispensation of pre-trial starts with how the arresting officer treats suspect whilst investigating alleged criminal offence(s). Proper handling of suspects at pre-trial stage is very important and crucial in every criminal justice system. One way to evaluate the efficacy of a country’ justice system is to examine the pre-trial process of that country.

IT IS WRONG TO PLACE CONVICTED CRIMIALS ALONGSIDE ACCUSED PERSONS

One major challenge noticed over the years in the criminal justice system is that when the circumstances require to have accused persons temporarily deprived of their personal liberty, they are placed with convicted inmates. This is absolutely wrong and I am sure it is due to the unavailability of sufficient cells at the Correctional centres, that is why convicted criminals are placed alongside those accused persons awaiting trials. As a matter of best practice, accused awaiting trials should be kept in cells separated from convicted persons. I am kindly pleading with Government to construct adequate cells so that those awaiting trials will not be sandwiched with convicted criminals. Accused should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media, moreover, should avoid news coverage undermining the presumption of innocence.

DEFENCE LAWYER AND THE CONCEPT OF PRESUMPTION OF INNOCENCE

Defence lawyers should, always keep in mind the presumption of innocence when representing a client. For example, a lawyer should challenge the legitimacy of any domestic provision attempting to undermine this principle. Also, counsel should attempt to anticipate weaknesses in the prosecution’s proof and consider researching and preparing corresponding motions for judgment of acquittal if the prosecution fails to produce evidence on any element of a crime. In deciding on a defence’s strategy, the lawyer, together with the accused, should consider whether the client’s interests are best served by not putting on a defence case, and instead relying on the prosecution’s failure to prove guilt beyond a reasonable doubt. Procedurally, during the proceedings, it is the accused that should take/ enter a plea of not guilty.

CONCLUSION

There is a school of thought, who however believed that we must not bother with a presumption of innocence of the accused. They believed that all accused persons must be kept in jail until trial. But if we are to go by this, accused persons will inundate the cells for convicted prisoners. This will also go contrary to the tenets of human rights and not be following procedural due process of the law. If all accused persons are kept in jail, such a system would be abhorrent to the inalienable right of the accused freedom. The principle of presumption of innocence, forbids the taking of an accused person’s liberty away solely on the basis of accusation. A person accused of a crime in Sierra Leone, is presumed innocent as provided by the constitution of Sierra Leone, 1991, until proven guilty beyond a reasonable doubt. The ideal and it is evident from the above that; presumption of innocence in Sierra Leone is an inalienable right and at the same time a constitutional right accorded to accused persons by law. In essence, presumption of innocence by law and practice in Sierra Leone is as of right and not an illusion.