COMMENT: 'Innocent until proven guilty' is being eroded

Tuesday 14 January 2020

A local advocate has slammed a set of law changes he claims have "eroded" the principle of 'innocent until proven guilty.'

The criticism comes from Olaf Blakeley, who outlined why criminal lawyers are facing "more challenges than ever before" following the introduction of legislation that "changes the playing field considerably" in his latest 'Adviser' column for Connect...

"For years the defence have had the ability to not disclose the nature of the defence case until trial while, on the other hand, the prosecution have had to explain to the defence the prosecution case well before trial.

Pictured: "For years the defence have had the ability to not disclose the nature of the defence case until trial..."

Why the difference? The answer is simple: the prosecution is alleging a set of facts against an individual and accordingly, it is only right (it is actually a right under European Law) the defendant fully understands the allegations against him.

It is another arm of, ‘…he who asserts must prove.’ Of course, this knits in nicely with the well-known phrase, ‘innocent until proven guilty’.  However, the ground has changed.  

Defendants now must file a ‘defence statement’ which sets out the nature of the defendant’s case which will be raised at trial, and failure to do so may result in the defendant not being able to rely on non-disclosed lines of defence; or more likely the court drawing adverse inferences from non-disclosure.  

By giving the prosecution a defence statement in advance, it allows the prosecution to set about dis-proving it. In my opinion, this has eroded ‘innocent until proven guilty.’

Pictured: "The prosecution must prove the defendant’s guilty beyond doubt."

The whole notion behind ‘innocent until proven guilty’ is that the prosecution must prove the defendant’s guilty beyond doubt. While this doesn’t change under new legislation, it is weakened. I have been involved in plenty of cases in which I have seen glaring errors in a prosecution case, and areas in which I knew the prosecution could not possibly get ‘home.’

I could wait until trial and then put forward the defence which the prosecution could not challenge. Now however, the defence actually ‘assists’ the prosecution: if the defence spots something which it believes will cause the prosecution case to fail, such things will probably have to be included in the defence statement, thereby assisting the prosecution.

Why should defence lawyers/defendants have to assist the prosecution in that way? In some way, we are acting as proof-readers, checkers, alerting the prosecution of holes in its case. The prosecution might as well just say, 'we have built a case against you; read it and let us know of anything you will run against it so we can plug the holes.'

Pictured: "It won’t be long before the police caution in Jersey is changed..."

Watch this space: it won’t be long before the police caution in Jersey is changed, so suspects will have to mention defences they may run at trial at police interview rather than – as they can currently – sit there and say nothing. 

It’s all slowly turning the tables against the defence, and I consider it wrong. Worse, there is no beneficial ‘quid pro quo’ gifted to the defence as I see it. If the States are going to take away rights afforded to defendants, then give something back in return.

One step would be to do what I have been pressing for a long time: protect defendants’ privacy until convicted. At the time of writing this, three prosecution cases collapsed. One for possession of indecent images in which the defendant’s sexual preferences were laid bare; another for indecent assault and one for illegal entry and assault.

All the defendants’ details were widely published in print, and online, to the benefit of nothing for the criminal justice system. The publication of their identities was unnecessary.   

Pictured: "The prosecution purse strings are drawing ever tighter with defendants being offered a slither of the amounts they have incurred in clearing their names."

Another step in the right direction would be to ensure defendants’ costs and expenses in cases are reimbursed in full if found not guilty. Likely? No. It’s got worse. The prosecution purse strings are drawing ever tighter with defendants being offered a slither of the amounts they have incurred in clearing their names. It’s appalling.  

It’s not all bad: about eight years ago, thankfully, the Supreme Court ruled against the UK government in respect of compensation for miscarriages of justice. The government wanted to deprive defendants who had been wrongly convicted from obtaining compensation unless they could prove their innocence. 

The court ruled this was contrary to ‘innocent until proven guilty.’ If someone was convicted, and should not have been, they should be entitled to compensation. They should not have to prove their innocence.  

It’s simple isn’t it?  If the prosecution succeeds, the defendant’s name is published and he or she is punished, including financially.  If the prosecution fails, it must compensate the defendant. I’m sure it would result in fewer cases, which in turn would save taxpayers’ money, and relieve pressure on an already overburdened court."

This article first appeared in Connect, which you can read by clicking here.