The Presumption of Innocence in the French and Anglo-American Legal Traditions

118. Lord Steyn relied heavily on a recent study which showed that 219 of the 540 offences that could be tried by the Crown Court involved “legal charges or presumptions against the accused”. Lambert, [2002] 2 A.C. 545, ¶32 (quoted Ashworth and Blake, “Presumption of Innocence”). The “presumption of innocence” serves to emphasize that the prosecution is required to prove all the elements of the offence beyond a doubt (or a different standard of proof depending on the criminal justice system) and that the accused does not have the burden of proof. [23] This is often expressed in the phrase “presumed innocent until proven guilty”, coined in 1791 by British lawyer Sir William Garrow (1760-1840)[24] at a trial at the Old Bailey. Garrow insisted that prosecutors be rigorously tested in court. An objective observer in jury position must reasonably conclude that the defendant almost certainly committed the crime. [25] In 1935, the English Court of Appeal, in its judgment in Woolmington v. Director of Public Prosecutions, later described Garrow`s articulation as the “golden thread” linking both the burden of criminal proof and the presumption of innocence in the English criminal law network. [26] According to the Talmud, “Every man is innocent until proven guilty. Therefore, the imposition of unusual hardship on the accused must be postponed until his innocence has been successfully challenged. Thus, in the early stages of the trial, his defense arguments are as detailed as for any other man in court.

The conjecture means:[23] 3. See Williams, , Proof of Guilt, 151Google Scholar (describes the hypothesis as “dear to the hearts of the English”) and Fellman, David, The Defendant`s Rights Under English Law (Madison: University of Wisconsin Press, 1966), 104Google Scholar (emphasis added). 78. My analysis of the calendars for two sampling years (1790 and 1792) shows that approximately 65% of the convictions referred by judges to the Middlesex quarterly sessions involved some form of embezzlement. See Smith, “Circumventing the Jury,” p. 89, Table 2.1. In 1790, the justices of the peace in Middlesex returned 143 summary undertakings for unlawful appropriation at quarterly meetings, a number that probably underestimates their number. Ibid. For a more in-depth discussion of the sources from which this data originates, see Norma Landau, “The Trading Justice`s Trade,” in Law, Crime and English Society, 65-66.

Although the scholarship judges appear to have been more active and conscientious than the traditional unpaid justices of the peace of the Middlesex judiciary, it is by no means clear that the records of convictions returned by the scholarship judges to the Middlesex quarterly sessions after 1792 were complete. Concerns about the record-keeping practices of municipal police services persisted into the nineteenth century, perhaps the most notorious in terms of financial accounting. See, for example, John Harriott and John Longley at [Lord Hawkesbury], 17 April 1808, Thames PO Letter Book (noting that the chief officer of the Thames Police Office “was invited to explain his reports which appear to be false”). 6. Referring to the Old Bailey trial, May writes about “the development of the concept of the presumption of innocence in the eighteenth century,” which marked a “new standard of justice” associated with the “right to legal representation, to a burden of prosecution rather than defence, to a high standard of proof, and to a belief in an adversarial trial.” May, Allyson N., The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), 233–35Google Scholar. Zum Aufstieg des Anwalts am Old Bailey siehe Langbein, John H., The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003Google Scholar); ders., « The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors », Cambridge Law Journal 58 (1999): 314–65Google Scholar; ders., « Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources », University of Chicago Law Review 50 (1983): 123–30Google Scholar; ders., « The Criminal Trial before the Lawyers », University of Chicago Law Review 45 (1978): 307–14Google Scholar; May, The Bar und The Old Bailey; Cairns, David J. A., Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Oxford : Clarendon Press, 1998Google Scholar); J. M. Beattie, « Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Century », Law and History Review 9 (1991): 221–67CrossRefGoogle Scholar; und Landsman, Stephan, « The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England », Cornell Law Review 75 (1990): 497-609Google Scholar. Für historische Behandlungen des « beyond-reasonable doubt »-Standards siehe Shapiro, Barbara J., « Beyond Reasonable Doubt » and « Probable Cause »: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University of California Press, 1991Google Scholar); ders., « `To A Moral Certainty`: Theories of Knowledge and Anglo-American Juries 1600–1850 », Hastings Law Journal 38 (1986): 153–93Google Scholar; Langbein, , Origines du procès criminel contradictoire, 261-66Google Scholar; Sheppard, Steve, « The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Evidence Have Weakened the Presumption of Innocence », Notre Dame Law Review 78 (2003): 1165-1249Google Scholar; und Morano, Anthony A., « A Reexamination of the Development of the Reasonable Doubt Rule », Boston University Law Review 55 (1975): 507-28Google Scholar.

In many countries and legal systems, including common law and civil law (not to be confused with the other type of civil law dealing with non-criminal legal issues), the presumption of innocence is a legal right of the accused in criminal proceedings. It is also an international human right under Article 11 of the United Nations Universal Declaration of Human Rights. 1. Williams, Glanville, The Proof of Guilt: A Study of the English Criminal Trial, 2nd ed. (London: Stevens & Sons, 1958), 152Google Scholar. The reference to “golden thread” comes from Wool-mington v. Director of Public Prosecutions, [1935] A.C. 462Google Scholar [H.L.], considered the “pivotal case” of the burden of proof in English criminal law. See Phipson on Evidence, ed. Howard, M. N., 15th edition (London: Sweet & Maxwell, 2000), 59Google Scholar. 2.

The scientific understanding of the presumption varies. In the words of a prominent American treaty, the presumption “is generally understood to mean nothing more than the indictment. the burden of proving guilty in order to avoid a directed judgment” and “convincing the investigator of guilt beyond a reasonable doubt in order to obtain a conviction.” LaFave, Wayne R.