Select Committee on European Scrutiny Thirty-Seventh Report

61 Green Paper on the presumption of innocence



COM(06) 174

Commission Green Paper on the presumption of innocence

Legal base
Document originated26 April 2006
Deposited in Parliament19 May 2006
DepartmentOffice for Criminal Justice Reform
Basis of considerationMinister's letter of 17 July 2006
Previous Committee ReportHC 34-xxxiii (2005-06), para 18 (28 June 2006)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared (decision reported 28 June 2006)


61.1 The presumption of innocence is an ancient principle common to the legal systems of civilised states. It is reflected in Article 6(2) of the European Convention on Human Rights, which provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". In its essence, the presumption of innocence means that an accused person must be treated as not having committed any offence unless and until sufficient evidence has been adduced to satisfy an independent and impartial tribunal of that person's guilt. These principles have been developed in extensive case law of the European Court of Human Rights in relation to such questions as conditions for detention prior to trial, the privilege against self-incrimination, trials in absentia, the burden of proof and the right of silence.

61.2 We considered the Commission's Green Paper on 28 June when we noted that the Commission wished to establish whether cross-border cases presented a particular problem for the operation of the presumption and whether legislation at the EU level would enhance the mutual trust on which mutual recognition of decisions depends. We also noted that the Green Paper asked a series of questions relating to the burden of proof (including situations where it may be altered or reversed), the privilege against self-incrimination and the right of silence and the conduct of proceedings in the absence of the defendant. The Green Paper also asked for details of any particular rules relating to the presumption of innocence in terrorist cases.

61.3 We noted that the Government was not satisfied that the presumption of innocence was a proper area for action at EU level or that a Commission initiative in this area was either necessary or desirable. We thanked the Attorney General (Lord Goldsmith) for his forthright Explanatory Memorandum and agreed with him that initiatives at EU level would be unwise. In our view, the case law of the European Court of Human Rights showed that the field was already occupied by the ECHR and, in consequence, that new initiatives at EU level would serve only to create ambiguity and confusion. We cleared the Green Paper from scrutiny, but looked forward to receipt of a copy of the UK's formal response.

The Attorney General's letter

61.4 With his letter to us of 17 July 2006 the Attorney General attaches a copy of the Government's reply to the Green Paper. Before dealing with the detailed questions in the Green Paper, the reply questions whether it is appropriate to bring forward the present initiative. In this regard, the Government notes that the draft Framework Decision on procedural safeguards has run into "very considerable difficulties", with the text proposed by the Commission being effectively abandoned, and with several Member States contending that there is no Treaty basis for such legislation at EU level. The Government observes that, against this background, the prospects for the successful negotiation of a Framework Decision on the "even more challenging issue of evidence-based safeguards" appear "extremely poor, the more so as it has not been demonstrated that there is an objective need for this exercise".

61.5 In reply to the various question posed by the Green Paper, the Government's reply refers first to the existence of three criminal jurisdictions in the United Kingdom (namely England and Wales, Scotland and Northern Ireland). It notes that in England and Wales the presumption of innocence has been "adjusted" in certain situations so as to allow inferences to be drawn from a defendant's silence, and to remove the right not to produce evidence in matters of serious of complex fraud. The reply refers to restrictions on media reporting in all three jurisdictions as a measure to protect the fairness of trials, and notes the further safeguard, in Scotland, provided by the need to show corroboration i.e. evidence from at least two sources that the alleged offence has been committed, and that it was the accused who committed the offence.

61.6 In reply to the question in the Green Paper as to the circumstances when it is acceptable for the burden of proof to be reversed or altered in some way, the reply refers to the principles established in the case of Sheldrake v. Director of Public Prosecutions[161] which describe the presumption of innocence as a fundamental right directed to the end of securing a fair trial, with the result that the substance and effect of any presumption adverse to the defendant must be reasonable and proportionate. Factors relevant to this examination are the opportunity given to the defendant to rebut the adverse presumption, the retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. The reply further explains that legislation may provide that an accused is obliged to prove an element of his defence (or disprove at least one element of the offence), this case being commonly known as a "legal burden", or is obliged to present some evidence of a defence, which the prosecution must then disprove, this being known as an "evidential" burden. If the imposition of a "legal" burden involves a breach of Article 6 ECHR, the reply points out that it is open to the court under s.3 Human Rights Act 1998 to "read down" the provision so that if an "evidential" burden would be satisfied, then the "legal" burden is discharged. The reply notes that in relation to Scotland, strict liability for criminal offences and the reversal of the burden of proof apply to offences "at the lower end of the scale" and that in relation to the recovery of assets, the standard of proof is often the balance of probabilities.

61.7 The reply notes that the Government is not aware of any situation in any UK jurisdiction where issues in relation to the burden of proof have created problems in cross-border situations.

61.8 The reply describes the law in England and Wales with regard to the right to silence. It notes that the Police and Criminal Evidence Act 1984 requires the police to inform a suspect of his right to remain silent, but that under the Criminal Justice and Public Order Act 1994 a jury may draw an adverse inference if an accused person later relies on a fact which he has not mentioned when being questioned and that under section 35 of the 1994 Act a jury may also draw an adverse inference in certain circumstances where an accused fails to testify or answer questions at trial. The reply also describes the limitations on the right to silence under section 2 of the Criminal Justice Act 1987 in relation to matters of suspected serious or complex fraud. By contrast, the reply notes that in Scotland a suspected person is obliged only to provide his name and address. The reply also notes that in neither jurisdiction is there any difference in the operation of these rules in cross-border situations, and that natural and legal persons are treated alike.

61.9 The reply also describes the law relating to the privilege against self-incrimination, and the legislative limitations which have been provided for in those cases where the public interest in the proper administration outweighs the rationale for the privilege. The reply again notes that in neither England and Wales nor in Scotland is there any difference in the operation of these rules in cross-border situations, and that natural and legal persons are treated alike.

61.10 The reply describes the very limited circumstances in which it is possible to conduct in absentia proceedings (i.e. proceedings in the absence of the accused). It notes that in England and Wales a magistrates' court are empowered in certain circumstances to try and sentence a person in his absence, but that such powers are used only sparingly. In the Crown Court, a trial may continue in the absence of the accused, provided he has been present to enter a plea and has subsequently voluntarily absented himself. The reply notes that the court's discretion to continue the trial is exercised only in exceptional cases and that in practice such trials are very rare. The reply notes that in Scotland certain summary proceedings may be continued in the absence of the accused where a sentence of imprisonment cannot be imposed in the first instance, or where there is specific statutory provision allowing such proceedings to continue. Trials in more serious (or "solemn") cases may be continued where the accused has failed to appear during the course of the trial and evidence has been led which substantially implicates the accused. In such cases, a solicitor will be appointed by the court to represent the accused, if no other solicitor has authority to act.

61.11 The reply notes that in none of the three jurisdictions of the United Kingdom do in absentia proceedings raise issues with regard to the presumption of innocence in cross-border cases. It notes that standards and methods of proof are the same as in situations where the accused is present. The reply also notes that cross-border cases involving in absentia proceedings are very rare, and that the only cross-border situation in which they might be raised would be extradition from another EU Member State to the UK after a conviction in the absence of the defendant.

61.12 In response to the question in the Green Paper about the existence of any special rules on the presumption of innocence in terrorist cases, the Government's reply notes that the Terrorism Act 2000 contains a number of specific offences and investigative powers for the purposes of investigating terrorism, which include provisions on the disclosure of information and the drawing of adverse inferences, but that a person who is accused of terrorism enjoys the presumption of innocence in all three jurisdictions of the UK.

61.13 The Government's reply concludes by stating that the Government is not aware of any problems in any of the jurisdictions of the UK which are linked to the presumption of innocence. Neither is the Government aware of any difficulties for cross-border co-operation arising from this issue. The Government concludes by stating that it does not consider that anything is to be gained from EU intervention in this aspect of criminal procedure.


61.14 We are grateful to the Attorney General for sight of the Government's formal reply to the Commission's Green Paper, and we agree with the points which have been made in the reply.

61.15 We do not repeat the points which we have made previously about this exercise, but express the hope that the Commission will not now waste resources by making legislative proposals in this area which would be both unnecessary and in breach of the principles of subsidiarity and proportionality.

161   [2005] 1 AC 264. Back

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