PRESUMPTION OF INNOCENCE (9128/06)
Letter from the Chairman to Rt Hon Lord
Goldsmith QC, Attorney General, Office for Criminal Justice Reform,
Sub-Committee E (Law and Institutions) considered
this Green Paper at its meeting of 21 June 2006.
We note that the Government show little enthusiasm
for EU legislation on the presumption of innocence. In your EM
you say that you do not consider that a Commission initiative
in this area is necessary or desirable. You refer to major differences
in the common law and civil law systems. What are your particular
concerns here? It would be helpful if you could provide an example
of one such major difference and the complications which might
ensue in any harmonisation attempt in the EU.
The Committee also queries whether certain reactions
to the Green Paper may be symptomatic of a more general problem.
We are aware that issues have arised over legal base. It seems
probable some Member States would oppose any future Framework
Decision on grounds of lack of competence. In our view, careful
thought should be given to the wisdom of pursuing action in an
area where opposition from at least one Member State is almost
certain (we understand that Austria and Slovakia have voiced concerns
in respect of current and future legislation aimed at harmonisation
of national criminal law procedures). A number of other dossiers
are, or are likely to be, similarly affected by challenges to
competence, including the Procedural Rights Framework Decision,
the Eurobail proposal and any future proposals on the Admissibility
of Evidence and Conflicts of Jurisdiction and ne bis in idem.
The Committee recalls the commitments made by
Member States in the Hague Programme, but on important matters
such as Procedural Rights little or no progress is being made.
Rather than pursuing negotiations on individual dossiers with
little prospect of success, Member States and EU institutions
may wish to reconsider more generally the extent of judicial cooperation
in criminal matters they now wish to have. Unless use if made
of Article 42 TEU passerelle to move to QMV, it is becoming
apparent that little progress will be made in this area without
some new agreement at the highest level. We understand that the
Commission has proposed a review of progress made in implementing
the Hague Programme and a thorough evaluation of results. Are
Member States still committed to the Hague Programme? Do you agree
that a comprehensive evaluation should now take place and that
a revised programme should, if necessary, be agreed?
We note that the deadline for responses to the
Green Paper was 9 June 2006. We would be grateful for your explanation
of why your EM was not received by this House until 13 June 2006.
We also look forward to receiving a copy of your response to the
We have decided to hold this Green Paper under
22 June 2006
Letter from Rt Hon Lord Goldsmith QC to
Thank you for your letter of 22 June. I note
you have held the Green Paper under scrutiny.
You asked about our particular concerns over
this Green Paper in relation to the differences between the common
law and civil law systems. I had in mind the fact that UK criminal
justice systems are essentially adversarial, while most other
European criminal justice systems are basically inquisitorial.
Though the differences can be overstated, I think it fair to say
that in common law systems, the functions of investigating, prosecuting,
testing and challenging the evidence, reaching conclusions and
adjudicating are performed by a number of different bodies. In
inquisitorial systems, on the other hand, the state usually has
the primary role both as fact-finding prosecutor, and as impartial
and independent judge actively involved in determining the truth.
Also, our proceedings at trial are primarily oral, whereas in
inquisitorial systems the "dossier" of written evidence
plays a central role, and oral evidence is supplementary.
In ECHR terms what is important is that the
trial process as a whole should be fair, whatever our system.
One problem with attempts to harmonise some elements of the trial
process on a pan-EU basis is that such measures will play into
different systems in different ways, with perverse and possibly
I note your comments regarding the wisdom of
pursuing action on a number of Commission dossiers which are likely
to be opposed by some Member States on grounds of lack of competence.
We are considering the general position on such measures in the
light of proposals now being made by the Commission, and we will
be writing to you about this separately.
As to the timing of my response, the Green Paper
did not set a firm deadline for responses but requested them "preferably
by 9 June". This allowed very little time for the amount
of consultation and consideration needed in formulating our response,
and in the event we are only now finalising it. We will send you
a copy once it has been lodged with the Commission.
I share your surprise that there was a delay
between my signing of the Explanatory Memorandum on 7 June and
its arrival with you on 13 June. I am afraid that this appears
to have been the result of an oversight while staff who normally
handle these documents were absent from the office.
8 July 2006
Lettter from Rt Hon Lord Goldsmith QC
to the Chairman
Further to my letter of 8 July on this subject,
l am writing now to enclose the UK's response to the Green Paper
on Presumption of Innocence.
We look forward to receiving any further comments
the Committee may have.
12 July 2006
CONSULTATION RESPONSE TO THE COMMISSION'S
GREEN PAPER ON PRESUMPTION OF INNOCENCE, COM (2006) 174, DROIPEN
Factual responses setting out the position in
the jurisdictions of the United Kingdom concerning the Green Paper
on the Presumption of Innocence are given below.
The United Kingdom questions if it is appropriate
to bring forward this initiative at the present time. Paragraph
2 of section 1.1 of the Green Paper indicates that the original
intention was to pursue evidence-based safeguards, of which this
is a part, following the work on procedural safeguards. In fact
the draft Framework Decision on procedural safeguards has run
into very considerable difficulties. The text proposed initially
by the Commission has effectively been abandoned and a much more
general text is currently being considered by Member States. Even
so, several Member States contend that there is no basis in the
Treaty for any such legislation at Union level. Against that background,
the prospects for negotiating to a successful conclusion 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.
In the circumstances, we suggest that substantive
work on this topic would not be a good use of scarce resources.
It should be noted that there are three jurisdictions
in the United Kingdom: England and Wales, Northern Ireland, and
Scotland. On mostbut not allissues the law in Northern
Ireland is the same as in England and Wales. The response below
to each question first sets out the position in England and Wales,
and then the position in Scotland. Northern Ireland will only
be mentioned where the position differs from England and Wales.
The law in England and Wales alone is very complicated
in this area. We consider that our domestic arrangements in all
three jurisdictions guarantee the rights of individuals in accordance
with the ECHR. However, a legislative approach designed to harmonise
systems across EU Member States would be likely to require significant
changes to our primary legislation.
1. Do you agree with the list of what
constitutes the presumption of innocence given here? Are there
any other aspects not covered?
This seems a broadly accurate account of the
position in all UK jurisdictions. However the presumption of innocence
is displaced by proof beyond reasonable doubt, so we would include
the qualification "reasonable" when indicating that
any doubt should benefit the accused.
In England and Wales the presumption of innocence
has been adjusted in certain situations, for example to allow
inferences to be drawn (in certain tightly defined circumstances)
from a defendant's silence, and removal of the right not to produce
evidence in matters of suspected serious or complex fraudsee
It should also be noted that there is a variety of
non-court disposals in UK jurisdictions, such as fines, mediation
and social work diversion, which may be used when there is sufficient
evidence to prosecute the person concerned; but it is always open
to him or her to refuse to accept any of these alternatives and
proceed to be tried for the offence.
2. Are there any special measures in your
Member State during the pre-trial stage in order to safeguard
the presumption of innocence?
Any special safeguards of this kind need to
be considered and understood in the context of the criminal justice
system in question as a whole. Publicity may impact on the fairness
of a trial, especially where a person is to be tried by a lay
jury. Care must therefore be taken to ensure that the reporting
of allegations is not such as to colour the approach of potential
jurors. The media in England and Wales are therefore constrained
in their reporting of early stages of criminal proceedings and
may in certain circumstances be specifically ordered by the court
not to report proceedings.
In Scotland, similar restrictions on media reporting
apply and there is also the important safeguard of corroboration,
which is required in two respects. Firstly, there must be evidence
from at least two sources that the alleged offence was committed,
and if so, evidence from at least two sources that it was the
accused who committed the offence in question.
3. (a) In what circumstances is it acceptable
for the burden of proof to be reserved or altered in some way?
In England and Wales, the principles governing
reverse burdens of proof in the context of Article 6 ECHR were
summarised by Lord Bingham of Cornhill in Sheldrake v Director
of Public Prosecutions  1 A.C. 264 at para. 21:
"21. From this body of authority certain
principles may be derived. The overriding concern is that a trial
should be fair, and the presumption of innocence is a fundamental
right directed to that end. The Convention does not outlaw presumptions
of fact or law but requires that these should be kept within reasonable
limits and should not be arbitrary. It is open to states to define
the constituent elements of a criminal offence, excluding the
requirement of mens rea. But the substance and effect of any presumption
adverse to a defendant must be examined and must be reasonable.
Relevant to any judgment on reasonableness or proportionality
will be the opportunity given to the defendant to rebut the presumption,
maintenance of the rights of the defence, flexibility in the application
of the presumption, 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. Security
concerns do not absolve member states from their duty to observe
basic standards of fairness. The justifiability of any infringement
of the presumption of innocence cannot be resolved by any rule
of thumb but on examination of all the facts and circumstances
of the particular provision as applied in the particular case".
There are a few strictly defined exceptions
to the general rule where the "reverse" onus is upon
the accused to prove some matter the effect of which is that he
is not guilty of the offence charged. There is one reverse onus
at common law, and that is the general defence of insanity, and
in all other cases reverse onuses are statutory, imposed by express
words or necessary implication.
In some cases 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 is commonly referred
to as a "legal burden". In other cases, an accused may
be subject to a lesser burden to present some evidence of the
defence and it is then the duty of the prosecution to disprove
the existence of that defence. This is most commonly referred
to as the defendant's, "evidential burden". If the imposition
of a legal burden on the accused involves a breach of Article
6 ECHR, in accordance with the principles set out above in Sheldrake,
a Court may use Section 3 of the Human Rights Act 1998 to "read
down" the provision so that if an evidential burden is satisfied,
then the legal burden is also satisfied.
Scotland: The three areas listed in paragraph
2.3 of the Green Paper represent areas where the burden of proof
may be modified. As far as strict liability offences and the reversal
of the burden of proof are concerned, these apply to offences
at the lower end of the scale in Scotland. In relation to the
recovery of assets, the standard of proof is often on the balance
3. (b) Have you experienced cross border
co-operation situations in which the burden of proof created a
We are 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.
4. (a) How is the right to silence protected
in your Member State?
In England and Wales, broadly along the lines
described in the Green Paper. Under the Police and Criminal Evidence
Act 1984 the police, when questioning a suspect, are obliged to
inform him of his right to remain silent.
However under the Criminal Justice and Public
Order Act 1994, if an accused fails to mention, when being questioned
by the police, a fact which is later relied on in his defence
in criminal proceedings, the jury may draw an adverse inference.
Under Section 35 of the same Act a jury may also draw an adverse
inference in certain circumstances where an accused fails to testify
or answer questions at trial.
As a further elaboration of the right to silence,
Section 2 of the Criminal Justice Act 1987 effectively limits
the right to silence and the right not to produce evidence in
matters of suspected serious or complex fraud. These compulsory
powers are an integral tool in the successful investigation and
prosecution of serious and complex fraud. Naturally there are
procedural safeguards in place to ensure these powers are compliant
with the ECHR. Firstly, a person may refuse to answer questions
if they have a reasonable excuse. Secondly these powers cannot
normally be used in evidence against the maker at trial, and thirdly
no person can be compelled to provide information or documents
which he would be entitled to refuse to disclose or produce on
the grounds of legal professional privilege.
In Scotland currently the only information a
suspect has to provide is name and address. (Legislation currently
in the Scottish Parliament, the Police, Public Order and Criminal
Justice Bill, due to come into force in August 2006, proposes
a minor addition to include date of birth and information relating
4. (b) Is there any difference in cross
In England and Wales, there is no difference
in cross-border situations if cross-border cooperation is the
issue. If we were seeking to gather evidence outside the UK the
suspect would have the same rights as in the UK. In cases of serious
or complex fraud, if another country uses compulsory powers similar
to our own to obtain evidence, this does not of itself pose a
problem for its admissibility provided equivalent safeguards are
in place. Similarly the powers available under Section 2 of the
CJA 1987 outlined above will be used to interview or obtain documents
for other EU Member States that have requested mutual legal assistance.
There are no differences in Scotland with regard
to cross border situations.
4. (c) To what extent are legal persons
protected by the right?
In all three jurisdictions there is no differentiation
between natural and legal persons, ie both are subject to the
same procedural safeguards.
5. (a) How is the right against self-incrimination
protected in your Member State?
In England and Wales, the privilege against
self-incrimination is well established and applies in respect
of all criminality, from those offences which are summary offences
triable only before magistrates (eg parking fines) up to those
which are triable only on indictment (eg murder). It is recognised
and given effect to by legislation. Parliament has however identified
a number of areas where it is considered that the public interest
in the proper administration of justice, and in particular in
ensuring that all relevant material is before the court, outweighs
the rationale for the privilege, and has legislated to provide
for this. The content of the privilege against self-incrimination
was subject to detailed scrutiny in Brown v Stott 
1 AC 681 and Attorney General's Reference no. 7 of 2000 
1 WLR 1879, and in accordance with the decision in Saunders
v United Kingdom it has been held that the privilege against
self-incrimination in criminal proceedings does not apply to pre-existing
There are however some limitations on the privilege.
For example, the criminal courts have powers to ensure that the
investigating authorities can secure documents from third parties.
The fact that compliance with an order to produce documents by
the person ordered may involve him in incriminating himself is
not per se a reason for not making the order. See also
the answer to Question 4 (a) above on Section 2 of the Criminal
Justice Act 1987.
In Scotland, in addition to the position explained
in 4(a) above, individuals are generally not required to speak
to police or produce any other evidence eg documents. But this
is without prejudice to the options available to the police to
apply through a prosecutor to a judge for a search warrant. However,
the prosecutor will only present the application and the judge
will only approve it if they think it is merited in the specific
It should also be noted that in both jurisdictions,
there are legal consequences for a suspect if they refuse to supply
intimate body samples. Suspects may also be required to take part
in an identity parade.
Furthermore, both jurisdictions have made it
a statutory offence for a driver to fail to respond to a question
from the police as to who was driving his vehicle at a particular
time. In the case of Brown v Stott 2003 IAC 681 the ECtHR
found that this is not a breach of the accused's right not to
5. (b) Is there any difference in cross
In all three UK jurisdictions there is no difference
with regard to cross-border situations.
5. (c) To what extent are legal persons
protected by the right?
In all three jurisdictions legal persons can
generally be said to enjoy the same protections as natural persons.
6. (a) Are in absentia proceedings possible
in your jurisdiction?
In England and Wales, Magistrates' Courts are
empowered in certain circumstances to proceed to trial and sentence
in the absence of the accused, but the powers are used sparingly.
Where a trial in absence takes place, the defendant can seek to
overturn the verdict within 21 days, seek a rehearing, or appeal
to the Crown Court. It is also possible for the Crown Court to
proceed with trial in the absence of the accused, provided the
accused has been present to enter a plea. If the accused then
voluntarily absents himself from the trial, it is in the court's
discretion whether to proceed in his absence. This discretion
must be exercised with great care and only in exceptional cases,
and in practice trials in the absence of the accused in the Crown
Court are very rare.
The discretion to proceed with a trial in absence
must be exercised so as to be compatible with Article 6 ECHR.
It is also necessary to have regard to the judgment in R v
Jones  UKHL 5. The Government is considering legislating
to allow the imposition of a custodial sentence in the accused's
absence in certain circumstances.
In Scotland in absentia proceedings are
also available in limited circumstances. There is provision to
allow for certain summary proceedings to go ahead in the accused's
absence where he/she is charged with a statutory offence for which
a sentence of imprisonment cannot be imposed in the first instance,
or where there is specific statutory provision allowing proceedings
in absence. In both cases the court must be satisfied that the
accused has had adequate notice of the hearing at which he/she
has failed to appear. Counsel or a solicitor may represent an
absent accused if the court is satisfied that they have appropriate
There are also provisions in Scottish law for
trial in absence in certain circumstances in solemn (serious)
cases so that a trial can continue in the accused's absence where
he/she fails to appear during the course of the trial, and evidence
has been led which substantially implicates guilt. The court may
allow the trial to continue if it believes that it is in the interest
of justice. A solicitor will be appointed to represent the accused
in this situation if no other solicitor has authority to act.
There are also provisions, which are seldom used, but which allow
for a person who misconducts him/herself in court to be removed
and for the trial to continue in his/her absence.
The Scottish Parliament is currently considering
legislation to extend substantially the provisions relating to
trial in absence in summary cases.
6. (b) Do these proceedings raise specific
problems with regard to the presumption of innocence, in particular
in cross border situations?
In all three jurisdictions, such proceedings
raise no issues with regard to the presumption of innocence in
cross border cases. Standards and methods of proof are the same
as in situations where the accused is present. Cross-border cases
involving in absentia proceedings are very rare, and the
only cross-border situation in which they might be raised would
be extradition from another state to the UK after conviction in
absence. Our limited experience is that this has not presented
7. Does legislation in your Member State lay
down special rules for terrorist offences? If so, please describe
the provisions inasmuch as they relate to the presumption of innocence.
Does this regime apply to other offences?
In England, Wales and Scotland. as a general
rule, terrorist offences are dealt with using the ordinary criminal
law and within the confines of the ordinary criminal justice system.
A person who is accused of a terrorist offence enjoys the protection
of the presumption of innocence. However, there are some legislative
provisions in relation to terrorist offences that are relevant
to the presumption of innocence.
The Terrorism Act 2000 contains a number of
specific offences and investigative powers for the purposes of
terrorist investigations. These include provisions for the disclosure
of information and drawing of adverse inferences in certain circumstances
provided for within the legislation. There are appropriate safeguards
within the legislation which ensure that the presumption of innocence
In Northern Ireland, special provision exists
for the trial of certain offences by a judge sitting alone rather
than with a jury. In such trials the presumption of innocence
8. At what point does the presumption of innocence
cease in your Member State?
In all three jurisdictions, the presumption
of innocence ceases either when the accused pleads guilty or is
found guilty. If appeal proceedings are upheld and the conviction
is quashed the person's "not guilty" status is reinstated.
9. (a) Are you aware of problems in a
cross border context linked to the presumption of innocence other
than those referred to above?
(b) To what extent are these problems related
to differences in approach in other jurisdictions?
(c) Could EU proposals add value in this area?
If so, in what way?
We are not aware of any problems in any UK jurisdiction
linked to the presumption of innocence. Nor are we aware of difficulties
with cross-border cooperation arising from this issue. We do not
accept that any of the areas discussed in response to the preceding
questions present any problems.
In consequence, we do not think that there would
be anything to be gained from EU intervention in this aspect of
Letter from the Chairman to Rt Hon Lord
Thank you for your letter of 12 July which has
been considered by Sub-Committee E (Law and Institutions) and
for the copy of the Government's Response to the Commission's
We are grateful to you for the additional information
and in particular for outlining your concerns in more detail.
We agree that difficulties may arise as a result of the differences
between the two main systems in Europe (civil law and common law)
and we would expect there to be careful consideration of these
issues. We recall that Member States are already under a legal
obligation to guarantee the presumption of innocence under the
European Convention on Human Rights, and that the case-law of
the Strasbourg Court has developed the content of this right.
In these circumstances, we are hesitant to agree immediately that
it would be dangerous to seek some level of harmonisation in the
This said however, we do consider that the proposal
raises subsidiarity concerns. As with other dossiers (eg the Green
Paper on conflicts of jurisdiction and ne bis in idem)
the Commission has yet to produce evidence that problems exist
and make a case for EU action. Should any proposal be adopted
by the Commission following this consultation, this is a matter
to which we will pay particular attention.
We note that you will write separately to us
on the matter of Member States' commitment to the Hague Programme.
We look forward to receiving your response to the questions we
raised in due course.
We have decided to clear the Green Paper from
25 July 2006