The Novel Directive On The Presumption Of Innocence: Protecting The ‘Golden Thread’

Debbie Sayers, Legal Research Consultant, http://interalia.org.uk

"Throughout the spider web of the […] criminal law ane golden thread is ever to hold upwards seen that it is the duty of the prosecution to evidence the prisoner's guilt”

Woolmington v DPP [1935] UKHL 1

(update: the law discussed inward this weblog post service was adopted in Feb 2016, together with must hold upwards applied past times 1 Apr 2018)

Around nine ane K m people are the dependent area of criminal proceedings every twelvemonth inward the EU.[1] All of them are entitled, past times law, to a fair trial irrespective of the accuse faced. The presumption of innocence (set out inward Article 6 (2) ECHR together with Article 48 (1) European Union Charter) is the cornerstone of the correct to a fair trial. It is rooted inward the take to protect the private against the improper usage of coercive terra firma power. The regulation is derived from, together with entrenched within, the constitutional traditions of all European Union Member States. In essence, it relates to both the procedural burden together with touchstone of proof (the prosecution must evidence the instance against the accused beyond reasonable doubt) patch also constituting a privilege inward its ain right.

In reality, the regulation is persistently nether assail inside European Union Member United States because of concern most offense together with security, because of rampant managerialism inward a climate of austerity[2] together with because of penal populism. Too often, a to a greater extent than ‘effective’ criminal jurist arrangement is portrayed exclusively equally a arrangement which convicts to a greater extent than people. Consequently, whatever word on how best to protect the presumption inward contemporary criminal jurist systems is to hold upwards welcomed. In the European Union context, the effective touchstone advertisement together with enforcement of human rights is to hold upwards peculiarly encouraged because European Union criminal cooperation, via mechanisms such equally mutual recognition (e.g. the European Arrest Warrant - EAW), has set bare the variability inside criminal jurist systems. Although fair trial standards are set out inward the ECHR, together with reflected inward the European Union Charter, their basic score of protection is neither uniformly transposed nor consistently enforced. This has undermined a model of criminal cooperation built on ‘mutual trust’ betwixt Member States. The EU’s response has been the creation of EU-specific standards inward the shape of Directives issued inward pursuance of the Roadmap for strengthening procedural rights of suspected or accused persons inward criminal proceedings based on Article 82 of the TFEU. Thus far the next instruments receive got been agreed:

·         Directive on the correct to information inward criminal proceedings establishes that Member United States must inform individuals of their rights, including the correct of access to a lawyer together with the correct to stay silent;

·         Directive on the correct to interpretation together with translation inward criminal proceedings;

·       Directive on the correct of access to a lawyer inward criminal proceedings together with inward European arrest warrant proceedings (the UK together with Republic of Ireland receive got opted out);

·        Commission Recommendation on the correct to legal assist for suspects; and

·    Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused inward criminal proceedings.

It is inward this context that the European Union has lately agreed a compromise text on the Proposal for a Directive on the strengthening of sure aspects of the presumption of innocence together with of the correct to hold upwards acquaint at trial inward criminal proceedings. The stated role of the Directive is “to heighten the correct to a fair trial inward criminal proceedings past times laying downward minimum rules concerning sure aspects of the presumption of innocence together with the correct to hold upwards acquaint at the trial” (Recital 4a). This should: “strengthen the trust of Member United States inward the criminal jurist systems of other Member United States together with […] thus assist to facilitate mutual recognition of decisions inward criminal matters. Such mutual minimum rules should also take away obstacles to the costless motion of citizens throughout the territories of the Member States.” (Recital 5)

Before looking at to a greater extent than or less of the key points of the Directive, at that topographic point are 2 points to note: first, although compliance amongst existing law (ECHR) is noted to hold upwards a problem, European Union touchstone setting has non been based on whatever empirical legal study. The precise range together with core of the presumption of innocence tin flaming hold upwards harder to define inside comparative contexts together with this required farther consideration. Second, Article 52(3) of the Charter confirms that the European Union may bring upwards standards beyond those of the ECHR but it cannot permit United States to autumn below them (note also the non-regression clause inward Article 12 of the Directive). The ECHR is thus the core baseline for whatever assessment of the efficacy of novel standards. Consequently, if the agreed musical instrument is not, at the real least, consistent amongst the ECHR, it is hard to conclude it volition receive got whatever positive do goodness for the accused or address the problems it seeks to resolve.

The Directive

Article 1 confirms that the Directive is intended to lay downward minimum rules on “certain aspects” of the correct to the presumption of innocence inward criminal proceeding” together with the correct to hold upwards acquaint at the trial inward criminal proceedings. The Directive is non intended, therefore, to hold upwards an exhaustive study of the regulation together with the ECHR volition still hold upwards the nous guide to those aspects which are non included inward the text.

Article 2: Scope

Article 2 confirms that the Directive volition apply at “all stages from the 2nd when a someone is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the terminal determination of the inquiry whether the someone has committed the offence concerned together with that determination has larn definitive”. Recital half dozen confirms that it applies “only to criminal proceedings, equally interpreted inward the case-law of the Court of Justice of the European Union (Court of Justice), without prejudice to the case-law of the European Court of Human Rights. Administrative proceedings, including administrative proceedings that tin flaming atomic number 82 to sanctions, such equally proceedings relating to competition, trade, fiscal services, traffic offences, or tax, including revenue enhancement surcharge, together with investigations past times administrative authorities inward relation to such proceedings, equally good equally civil proceedings, should non hold upwards covered past times this Directive.”

There is no recognition of the possible consequences that admissions made inward administrative proceedings could receive got on subsequent criminal proceedings. Further, despite the pregnant of the term criminal proceedings existence “without prejudice” to the Definition established past times the ECtHR, the Directive seems to contradict this. Article half dozen (2) ECHR refers to a “criminal offence” but this has been interpreted to covert types of cases beyond the classically “criminal”, for example, professional person disciplinary proceedings or sure administrative offences which may autumn inside the ambit of the criminal caput of Article half dozen (e.g. Lutz v Germany, No. 9912/82, 25/08/1987; Bendenoun v. France 12547/86, 24/02/1994).

Further, the Directive applies only to natural persons together with hence excludes legal persons (e.g. companies). In a Joint Position Paper inward 2014, Fair Trials International, noted that this leaves “their protection to existing safeguards, patch acknowledging that the instance law of the ECtHR has non clearly recognised the correct of quiet for legal persons” (para 12).[3] Given that legal persons tin flaming clearly hold upwards affected past times the mutual recognition agenda, this is an chance missed inward damage of clarifying together with enhancing protection.

Additionally, equally FTI has noted, different the Directive on access to a lawyer (Article 2(3)), this Directive does non extend protection explicitly to those “persons other than suspects or accused persons who, inward the course of teaching of questioning, larn suspects or accused persons”. There appears to hold upwards no justification for this inconsistency.

Article 3: Presumption of innocence

Article 3 is simply a restatement of the principle. It sets out “Member United States shall ensure that suspects together with accused persons are presumed innocent until proven guilty according to law”.  There is no travail to articulate the nature of the provision farther or set out the core aspects of the presumption for the purposes of the Directive.

For example, the ECtHR has confirmed that, inward practice, for the presumption to hold upwards meaningful, certain procedural safeguards must hold upwards inward place. For example, the prosecution volition take to make evidence of guilt inward the trial (Barberá, Messegué together with Jabardo v. Spain, No. 10590/83, 6.12.98) together with the defendant must hold upwards given the correct to hold upwards heard inward his or her ain defense (Minelli v. Switzerland No. 8660/79, 25.3.83). It volition also hold upwards unlawful to base of operations a conviction exclusively on the quiet of an accused (Murray v. UK, No. 18731/91, 8.2.96). Consequently, the presumption is closely tied to the powerfulness of the suspect to defend him/herself past times receiving information most the accuse so that s/he may gear upwards together with acquaint her/his defense accordingly (Barberá, Messegué together with Jabardo v. Spain).  H5N1 document aimed at ensuring consistency should receive got articulated these issues to a greater extent than clearly.

Article 4: Public references to guilt earlier proven guilty

Article iv puts Member United States nether an obligation to “take the necessary measures” to ensure that at that topographic point are no populace statements made past times “public authorities”, equally good equally judicial decisions (save for verdicts), earlier suspects receive got been proven guilty according to law (see also Recitals thirteen together with 13a). This does non include prosecution attempts to evidence the instance or the populace dissemination of information on the proceedings when it is “strictly necessary” for reasons relating to the criminal investigation or for the populace interest. Appropriate remedies must hold upwards made available inward the lawsuit of a breach (Article 10).

The instance law of the ECtHR is quite substantial inward this expanse (e.g. Allenet de Ribemont v. France, No. 15175/89, 10.02.1995) and to a greater extent than detailed guidance may assist to drive upwards standards. Additionally, reference could receive got been made to the Council of Europe’s standards (CoE Recommendation Rec (2003)13 on the Provision of Information through the Media) peculiarly Principles 1 together with 2 to assist inward clarifying the range together with content of this Article.

Article 4a - Presentation of suspects together with accused persons

This provision obliges Member United States to “take appropriate measures” to ensure that suspects are non “presented equally existence guilty, inward courtroom or inward public, through the usage of measures of physical restraint” (see also Recital 13c). An exception is made nether Article 4a (2) if the measures are required for safety purposes or to forestall suspects absconding or having contact amongst tertiary persons.

The ECtHR has established that an accused should non hold upwards treated inward a way which undermines the presumption of innocence, e.g. past times existence inward a caged dock without justification or existence required to vesture prison theatre uniforms (Ramishvili together with Kokhreidze v. Georgia, No. 1704/06, 27.1.09; Jiga v. Romania, App. No. 14352/04, 16.3.10). The Directive arguably offers less protection past times focusing exclusively on physical restraint. The only concession to this lies inward the rather weak assertion inward Recital 13d which requests that Member United States “refrain from presenting suspects inward prison theatre clothes where “practically possible”.

Article 5: Burden of proof

Article five deals amongst the burden of proof. It requires Member United States to “ensure that the burden of proof inward establishing the guilt of suspects together with accused persons is on the prosecution”. This is an of import issue. The burden of proof refers to the fact that the prosecution who must evidence the instance against the accused. The initial draft of Article five initially contained an article permitting the burden of proof to hold upwards shifted to the defence. The European Parliament’s Civil Liberties Committee successfully proposed an amendment deleting this burden of proof shifting provision.

However, Recital xiv permits presumptions of fact together with law “confined inside reasonable limits, taking into work organization human relationship the importance of what is at stake together with maintaining the rights of the defence, together with the means employed receive got to hold upwards reasonably proportionate to the legitimate aim sought to hold upwards achieved. The presumptions should hold upwards rebuttable; inward whatever case, they may only hold upwards used provided the rights of the defense are respected”. Presumptions of fact together with law create contrary burdens of proof which tin flaming clearly undermine the presumption of innocence. The ECtHR has permitted the evidential burden to hold upwards shifted to the defense but the importance of what is at stake together with the safeguards which be to protect the rights of the defense must hold upwards considered when determining whether a contrary burden is acceptable (Salabiaku v. France, Nos. 10519/83, 10519/83, 7.10.88).  No reference is made inward the Directive for the take for specific safeguards to protect the rights of the defense inward cases of presumptions of fact or law.

Article 6: Right to stay soundless together with correct non to incriminate oneself

Article half dozen (formerly Articles half dozen together with 7) requires that the suspect has the correct to stay soundless “in relation to the offence that they are suspected or accused of having committed”. This should sure as shooting receive got been extended to the correct to quiet inward relation to the committee of whatever offence.

The Directive also confirms that “suspects together with accused persons receive got the correct non to incriminate themselves” (Saunders v. the United Kingdom, No. 19187/91, 17.12.96). Under Article half dozen (1) ECHR, the correct non to incriminate oneself presupposes that the prosecution must evidence their instance against the accused without recourse to evidence obtained “through methods of coercion or oppression inward against the volition of the accused”. The importance of informing a suspect of the correct to stay soundless is crucial yet the Directive makes no comment on this together with makes no straight link inward the operational text (as opposed to the Recitals) betwixt this correct together with the Directive on the Right to Information or the Directive on the Right of Access to a Lawyer. Access to a lawyer is role of the procedural safeguards to which the ECtHR volition receive got regard when examining whether whatever physical care for has undermined the privilege against self-incrimination. If an accused has no lawyer, s/he has less run a peril of existence informed of his/her rights together with at that topographic point is less run a peril that they volition hold upwards respected (Pishchalnikov v. Russia, No. 7025/04, 24.9.09).

The ECtHR has noted that fifty-fifty where a someone willingly agrees to give statements to the police line after existence informed that his/her words may hold upwards used inward evidence against him/her, this cannot hold upwards regarded equally a fully informed alternative if s/he has non been expressly notified of his correct to stay soundless together with if his/her determination has been taken without the assistance of counsel (Navone together with Others v. Monaco, No. 62880/11, 24.10.13; Stojkovic v. French Republic together with Belgium, No. 25303/08, 27.10.11).

Yet, the Directive contains no reference to waiver of rights. The ECtHR has said, consistently, that a someone tin flaming waive whatever fair trial guarantees of their ain costless will, either expressly or tacitly, but that a waiver requires safeguards for it to hold upwards effective, namely it must: (i) hold upwards established inward an unequivocal manner; (ii) hold upwards attended past times minimum safeguards commensurate to its importance; (iii) hold upwards voluntary; (iv) constitute a knowing together with intelligent relinquishment of a right; together with (v) if implicit from the accused’s conduct, it must hold upwards shown that s/he could reasonably receive got foreseen what the consequences of his/her comport would be. Further, reasonable steps should hold upwards taken to ensure the accused has a score of agreement commensurate to their personal province of affairs (Panovits v. Cyprus, No. 4268/04, 11.12.08). States volition take to convey additional steps to protect the rights of vulnerable suspects such equally persons amongst disabilities together with children, for illustration past times arranging for tertiary parties to back upwards the individual.

It is of banknote that, inward contrast, Article nine of the Directive on the Right of Access to a Lawyer creates 3 weather condition for a valid waiver: (i) the suspect must hold upwards provided, orally or inward writing, amongst clear together with sufficient information inward uncomplicated together with understandable linguistic communication most the content of the correct concerned together with the possible consequences of waiving it; (ii) the waiver must hold upwards given voluntarily together with unequivocally; together with (iii) it must hold upwards recorded inward accordance amongst the law of the European Union Member State. However, it should hold upwards noted that the draft Directive on procedural safeguards for children suspected or accused inward criminal proceedings confirms that children may non waive their correct to a lawyer. Further, an European Union Recommendation on procedural safeguards for vulnerable persons recommends that it should non hold upwards possible for vulnerable persons to waive their correct to a lawyer (Recommendation of 27 Nov 2013 on procedural safeguards for vulnerable persons). Waiver is non addressed inward the Directive together with it is non clear why similar protections to the correct to quiet receive got non been established. Although Recitals 25c together with 25d brand reference to vulnerable suspects, they brand no specific administration on the core of the protection they require.

Under Article half dozen (2), inward line amongst the ECtHR jurisprudence, “the exercise of the correct non to incriminate oneself shall non forestall gathering evidence which may hold upwards lawfully obtained through the usage of legal compulsory powers together with which has an existence independent of the volition of the suspects or accused persons”. The ECtHR has noted this includes documents acquired pursuant to a warrant, breath, blood together with urine samples, together with bodily tissue for the role of deoxyribonucleic acid testing (Ortiz together with Martin v. Spain, No. 43486/98, 15.6.99).

Article half dozen (2b) of the Directive permits Member States’ judicial authorities to convey into work organization human relationship “the cooperative deportment of suspects together with accused persons when sentencing”. No explanation is given for what “cooperative behaviour” way together with certainly an “admission of guilt” is non excluded. This appears contradictory, confused together with potentially undermining. Discounts for ‘cooperative behaviour’ are mutual inward many criminal jurist systems but they may create perverse incentives to plead guilty. All incentives to guilty pleas may compromise the correct of defendants to hold upwards presumed innocent equally they salve the prosecution of the burden of proving guilt, together with house pressure level on suspects to acknowledge an offence. Further idea should receive got been given to the implications of this Article on practice.

Article half dozen (3) notes that “the exercise of the correct to stay soundless together with of the correct non to incriminate oneself shall non hold upwards used against a suspect or accused someone together with shall non hold upwards considered equally evidence that the someone concerned has committed the offence which he or she is suspected or accused of having committed”. This is welcome together with appears to move farther than the ECtHR which has found that an accused’s determination to stay soundless throughout criminal proceedings may send consequences, such equally ‘adverse inferences’ existence depict from the silence. (Condron v. United Kingdom, No. 35718/97, 2.5.00; Murray v. UK, No. 18731/91, 8.2.96).

Under Article half dozen (5) Member United States are non precluded from deciding that “in pocket-sized offences, the comport of proceedings, or sure stages thereof, may convey house inward writing and/or without questioning of the suspect or accused someone past times the police line or other law enforcement or judicial authorities inward relation to the offence concerned, provided this is inward conformity amongst the correct to a fair trial”. The Commission has made a specific tilt inward relation to this provision stating that it should non hold upwards used to allow derogations from the correct or to allow Member United States to depict negative consequences from the exercise of the suspects' correct to stay silent.

A proposal past times FTI for the audio-visual recording of police line interviews to forestall violations was non taken on board. Thus, the circumstances inward which an accused agrees to speak stay extremely important. This is peculiarly of import equally at that topographic point is no specific provision reinforcing the prevention of subterfuge to undermine the correct to quiet past times eliciting confessions (e.g. past times the usage of informants) together with no specific prohibition on the usage of such evidence at trial. The ECtHR has clearly held that the privilege against self-incrimination includes the correct non to incriminate oneself through coercion or oppression, inward defiance of the volition of the accused: Allan v. the United Kingdom, No. 48539/99, 12.11.02. This should receive got been clearly restated.

Article 8: Trials inward absentia

Article 8 (and Recitals 21 together with 22) re-affirm the individual’s correct to hold upwards acquaint at their trial. The ECtHR has confirmed that this is implicit inward the correct to a fair trial past times way of a populace hearing (Jacobsson v. Sweden, No. 16970/90, 19.2.98) together with that it is hard to meet how anyone tin flaming exercise their defense rights without existence acquaint at their ain trial (Colozza v. Italy, No. 9024/80, 12.2.85).

However, this regulation is non absolute together with this is reflected inward the provisions of the Directive. Articles 8 (2) together with (2a) permit Member United States to handgrip trials inward someone’s absence (and to enforce the determination of that trial) only if: (a) the suspect or accused someone has been informed inward due fourth dimension of the trial together with of the consequences of a non-appearance; or (b) the suspect or accused person, having been informed of the trial, is represented past times a mandated lawyer, who was appointed either past times the suspect or accused person, or past times the State. This is narrower than the seat set out past times the ECtHR which has indicated that only “certain established facts powerfulness furnish an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him together with of the nature together with the crusade of the accusation together with does non remember to convey role inward the trial or wishes to escape prosecution” (Sejdovic v Italy, No. 56581/00, 1.3.06, at [99]). For example, “where the accused states publicly or inward writing that he does non remember to respond to summonses of which he has larn aware through sources other than the authorities, or succeeds inward evading an attempted arrest …. or when materials are brought to the attending of the authorities which unequivocally demonstrate that he is aware of the proceedings pending against him together with of the charges he faces” ([99]).

Under Article 8 (3), if Member United States cannot comply amongst Article 8 (2) because the suspect or accused someone cannot hold upwards located despite reasonable efforts having been made, “Member United States may furnish that a determination tin flaming nevertheless hold upwards taken, together with that such a determination tin flaming hold upwards enforced”. However, inward this situation, Member United States “shall ensure that when suspects or accused persons are informed of the decision, inward special when they are apprehended, they shall also hold upwards informed of the possibility to challenger the determination together with of the correct to a novel trial, or to a greater extent than or less other legal remedy, inward accordance amongst Article 9”. The ECHR makes no such distinction inward relation to when an accused has a correct to a retrial. Indeed, inward the instance of Sejdovic v Italy, (No. 56581/00, 1.3.06), the ECtHR confirmed that “a denial of jurist … undoubtedly occurs where a someone convicted inward absentia is unable later to obtain from a courtroom which has heard him a fresh determination of the merits of the charge, inward honor of both law together with fact, where it has non been established that he has waived his correct to appear together with to defend himself” (at [82]).

Article 8 (4) together with (5) are both made “without prejudice to national rules” to permit temporary exclusion of a suspect from their trial or proceedings existence conducted inward writing if sure weather condition are met. It is unhelpful to refer dorsum to national law inward a document which aims to consolidate rights at European level.

Finally, it should hold upwards noted that the Directive attempts to set standards inside national jurisdictions, a province of affairs that should hold upwards distinguished from that inward Melloni where national standards potentially impeded the uniform application of cross-border obligations. In dealing amongst a inquiry of trial inward absentia, the CJEU inward the instance C-399/11, Stefano Melloni v. Ministerio Fiscal, 26.2.13 appeared to suggest that the Charter embodies a maximum rather than a minimum touchstone of human rights protection (save where the European Union has non fully harmonised the field). This was to forestall the efficacy of the EAW Framework Decision (as amended past times a later Framework Decision concerning inward absentia proceedings together with mutual recognition) existence compromised. The Directive on the presumption of innocence, however, is specifically articulated equally a set of minimum standards pregnant that Melloni does non forestall higher standards existence established nationally. Indeed, Article 12 explicitly prohibits the Directive from limiting the law of whatever Member State which provides a higher score of protection.   

Article 9: Right to a novel trial

This permits the correct to a retrial only where the weather condition inward Article 8 (2) receive got non been met. In whatever retrial, “Member United States shall ensure that the persons concerned receive got the correct to hold upwards present, to participate effectively, inward accordance amongst procedures nether national law, together with to exercise their rights of defence”. A previous proposal stipulating that retrials could hold upwards denied to those who neglect to asking a retrial or appeal “within a reasonable amount of fourth dimension has been removed.  But this provision remains weak.

Under the ECHR, if a someone is non acquaint at trial, they cannot exercise their defense rights nether Article half dozen (3) ECHR. The ECtHR has held that without a clear demonstration of the accused’s actual knowledge of the proceedings, a courtroom may non commence a trial inward absentia unless the accused has a correct to retrial, Krombach v. France, No. 29731/96, 13.2.01 Such retrial or appeal must fully comply amongst the demands of Article half dozen of the ECHR, including the correct to human face previous evidence including the cross-examination of witnesses. This provision should receive got reflected the law to a greater extent than closely.

Article 10: Remedies

Article 10 confirms that “Member United States shall ensure that suspects together with accused persons receive got an effective remedy if their rights nether this Directive are breached”.  Further, “without prejudice to national rules together with systems on the admissibility of evidence, Member United States shall ensure that, inward criminal proceedings, inward the assessment of statements made past times suspects or accused persons or of evidence obtained inward breach of their correct to stay soundless or their correct non to incriminate themselves, the rights of the defense together with the fairness of the proceedings are respected”. Recital 26 confirms that “as far equally possible” the suspect should hold upwards placed “in the same position” they would receive got been inward but for the breach.

This could receive got been a much to a greater extent than robust provision. It could, equally a minimum, receive got reflected the electrical flow terra firma of ECHR/EU law. The correct to an effective remedy is set out inward Article thirteen ECHR together with Article 47 European Union Charter. The primary requirement is that the remedy should hold upwards “effective inward do equally good equally inward law”. The type of remedy required volition depend on the circumstances of the instance but to a greater extent than or less core principles receive got been developed to create upwards one's take heed effectiveness. For example, an effective remedy must be: (i) accessible; (ii) capable of providing redress inward honor of the applicant’s complaints; together with (iii) offering reasonable prospects of success (Selmouni v. France, No. 25803/94, 28 July 1999). In damage of unlawfully obtained evidence, the inquiry is whether the proceedings equally a whole, including the way inward which the evidence was obtained, were fair. This involves an exam of the alleged unlawfulness inward inquiry (e.g. Khan v. the United Kingdom, No. 35394/97, 12.5.00). Particular considerations apply inward honor of the usage inward criminal proceedings of evidence obtained inward breach of Article 3. The usage of such evidence ever raises serious issues equally to the fairness of the proceedings, fifty-fifty if non decisive inward securing a conviction (e.g. Jalloh v. Germany, No. 54810/00, 11.7.06).  Recital 26a simply notes that “regard should hold upwards had” to the instance law on Article 3. This is disappointingly weak phrasing for such an essential protection.

Conclusion

Governments are constantly struggling to residual safety fears amongst a honor for private human rights. This is complicated farther past times the growing disconnect betwixt citizens together with their governments which, inward itself, presents a challenge to the legitimacy of political actions. The outcome is that nosotros receive got begun to lose religious belief inward the capacity of our criminal jurist systems to tackle offense together with so nosotros start to await for shortcuts to restore an social club nosotros believe has been lost. All besides often, offense command has larn mired inward the form of political ground which looks for uncomplicated answers. This makes it slow to overlook the fact that our criminal jurist systems do non be exclusively to churn out speedy convictions. It allows us to forget that suspects are individuals who receive got not yet been proved guilty of whatever offence.

In this context, an European Union Directive restating the importance of the presumption of innocence is a welcome step.  But does this musical instrument arrive enough? Based on the analysis above, my respond would hold upwards no.  There are 3 key reasons for this conclusion: first, touchstone setting has been built on assumptions rather than based on an empirical agreement of the performance of criminal jurist systems together with the reasons why electrical flow standards fail; second, the Directive does non consistently shore upwards the basic requirements of the ECHR together with its instance law despite the non-regression clause inward Article 12; together with third, the Directive fails to reference effectively previously agreed European Union instruments to create a holistic framework for the protection of key rights.

Under Article 13, the Directive is to hold upwards transposed 24 months after its publication. The truthful essay out of its efficacy volition prevarication inward its capacity to challenge unlawful practice.

Photo credit: The Guardian.com

Barnard & Peers: chapter 9, chapter 25

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[1] Fair trials: civil liberties MEPs dorsum novel European Union rules on presumption of innocence, LIBE Press release, 10.11.15.

[2] For example, meet the criminal courts accuse Guardian Editorial, xviii Oct 2015. See also Access to Justice: H5N1 Comparative Analysis of Cuts to Legal Aid, Report of the Monash Warwick Legal Aid Workshop, 2014.

[3] See also, FTI, Presumption of innocence directive agreed, eleven Nov 2015.

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