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Criminal Law Forum (2016) 27:131158 The Author(s). This article is published with open access at Springerlink.com 2016
DOI 10.1007/s10609-016-9281-8
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Web End = PAMELA R. FERGUSON*
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Web End = THE PRESUMPTION OF INNOCENCE AND ITS ROLE IN THE CRIMINAL PROCESS
ABSTRACT. Many international instruments proclaim that those who face criminal prosecution ought to be aorded a presumption of innocence, and the importance and central role of this presumption is recognized by legal systems throughout the world. There is, however, little agreement about its meaning and extent of application. This article considers the purposes of legal presumptions in general and explores various, sometimes contradictory, conceptions of this most famous one. It is equated by many scholars to the requirement that the prosecution prove guilt beyond a reasonable doubt. As such, it is merely a rule of evidence (albeit an important one), with no application pre- or post-trial. The article advocates adoption of a broader, normative approach, namely that the presumption reects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law. As such, it should be promoted as a practical attitude to be adopted by the key protagonists in the justice system, for the duration of the criminal process.
I INTRODUCTION
In August 2014 the Mayor of London suggested that UK criminal law be amended to deal with the dangers posed by the jihadist group Islamic State (ISIS). In relation to British citizens who travel to certain war areas such as Syria and Iraq: The law needs a swift and minor change so that there is a rebuttable presumption that all those visiting war areas without notifying the [UK] authorities have done so for a terrorist purpose.1 In response to such calls for a presumption of guilt, recourse is often had to the rhetoric of the presumption of innocence, yet there is rarely any attempt to articulate what this means, or why such a presumption should operate
* Professor of Scots Law at University of Dundee, Scotland, UK. E-mail: [email protected].
1 B. Johnston, Do nothing, and we invite the tide of terror to our front door The Telegraph, 24 August 2014.
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