Presumed innocent - once, briefly

Under the International Covenant on Civil and Political Rights, if you are convicted of an offence and have exhausted all avenues of appeal and are subsequently proven innocent by new evidence, you are entitled to compensation.

NO EXCUSES

If you have been falsely accused by the Crown and duly discharged or acquitted, the mere fact that you have been locked up and/or financially ruined for something that you didn't do does not constitute a legal wrong and does not render the Crown liable for compensation. The weakest legal entity is the individual. The strongest is the State. If the doctrine of absolute liability does not apply when an individual is harmed by the State, it should not apply under any circumstances.

The fact that an acquitted defendant might be guilty is a red herring. If you are guilty, you should take the due punishment and pay the cost of trying to avoid it. If you are innocent, you should escape the penalty and be recompensed for your losses. Any intermediate outcome is guaranteed to be unjust. If you are acquitted and recompensed, justice may be done because you may actually be innocent; but if you are acquitted and left to pay the bills, justice cannot be done, because you are treated as innocent for one purpose and as guilty for another, and you cannot be both at once.

Indeed, there are cases in which the possible guilt of an acquitted defendant actually strengthens the case for reimbursement of costs. If an offender is acquitted in a criminal trial, and if the victim subsequently wins a civil action against the offender, the capacity of the offender to pay damages is reduced by the costs incurred in the criminal trial. Thus the Crown, by failing to reimburse these costs, penalizes the victim rather than the offender!

Any suggestion that the Crown cannot afford to pay costs or compensation to defendants is ridiculous. If you are acquitted by a jury, the Crown saves the cost of imprisoning you. The Crown is willing and able to meet this cost if you are convicted. If you are discharged at a committal hearing, the Crown also saves the cost of prosecuting you at a trial. The Crown is willing and able to meet this cost (and more!) if you are committed for trial. Why is the cupboard suddenly bare if the magistrate discharges you? Concerning legal costs, the Crown already funds all prosecutions and (through legal aid) most defences, including most defences of guilty defendants. Moreover most defendants, whether covered by legal aid or not, are found guilty. Hence the costs in dispute here – the costs of acquitted or discharged defendants who are not fully covered by legal aid – are a small fraction of the costs that the Crown already meets. Besides, if the former costs cannot be borne by all taxpayers together, even less can they be borne by the tiny fraction of taxpayers who bear them at present, namely the defendants and their creditors.

SUMMARY

Bail applications, appeals and parole applications are processed using a presumption of guilt. In the case of bail applications it is immaterial that the applicants have not yet been convicted or even committed. The apportionment of costs in criminal cases and the lack of compensation for pre-trial or pre-appeal incarceration are consistent with the assumption that it is better to punish the innocent than allow the guilty to escape punishment. Only the trial proper is conducted on the assumption that it is better to acquit the guilty than to punish the innocent. Only during the trial proper is there any attempt at a presumption of innocence, and then only for the purposes of conviction and formal sentencing. In all other respects, the presumption of innocence is a myth and a sham.