Onus of proof and sex crimes

Presumption of innocence

It is unclear as to who was the first to have expressed the opinion that it is better to let the crime of a guilty person go unpunished than to condemn the innocent. Somebody suggested that it has been handed down to us from Roman law which dates from the "Law of the twelve Tables" around 450 BC. François Quintard-Morénas, writing on "The presumption of Innocence in the French and American Traditions" in "The American Journal of Comparative Law" (2010),traces it back even further, to one of the oldest written codes of law, the Babylonian "Code of Hammurabi" (1792-1750 B.C.).

It was William Garrow, an English barrister known for his aggressive style of cross-examination and considered the godfather of advocacy, who was accredited in the year 1783 with having introduced the phrase "presumed innocent until proven guilty".

Commenting on the doctrine in "A Treatise on Judicial Evidence" which he published in 1825 the English philosopher and jurist, Jeremy Bentham, wrote (Book VI, Chapter II, p. 198):

At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused to be condemned, unless the evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished.

Bentham's premonition has proven to be true beyond all imagination. The scales of justice are so heavily weighted in favourof the guilty that the vast majority of sex offenders are never punished.

Not surprisingly, Bentham clearly takes the opposite position to the reigning doctrine (p.194):

Between Plaintiff and Defendant, the presumption ought to be in favourof the former, to the prejudice of the latter. The probability in favourof the former, because he voluntarily submits his right to the decision of justice; but the defendant appears in spite of himself. The case in which it is the interest of the plaintiff to litigate in opposition to his own conviction, must always be rare …

Though this may be seen as a radical departure from the sacrosanct principle of presumption of innocence, it is not quite as revolutionary as it may first appear. A number of jurists and historians affirm that the Anglo-Saxon and Latin traditions of law and justice have not always observed strict respect of the principle of the presumption of innocence.

Bruce Smith, co-director of the Illinois Legal History Program at the University of Illinois College of Law, indicates that many English criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt designed to combat various forms of misappropriation. Under these statutes, persons detected in possession of goods such as metal, rope, textile materials, or wood, who failed to "account" adequately for their possession, could be convicted by magistrates of misdemeanours.

Smith also points out that in 2001, the House of Lords considered the case of Regina v. Lambert, an appeal by a defendant convicted of "intent to supply" cocaine under the Misuse of Drugs Act 1971. The defendant, who had been detected with a bag of cocaine in his car, was convicted of drug trafficking, after he failed to prove that he did not know that the bag in his possession contained a controlled substance. On appeal, Lambert argued unsuccessfully that the Misuse of Drugs Act, by requiring a suspect to prove "lack of knowledge," violated article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

Smith adds that "in a ringing dissent", Lord Steyn, who is currently a life peer (judicial) in the House of Lords, having stepped down as a Law Lord in 2005, observed that nearly 40 percent of indictable offenses in England contain some type of statutory presumption against the defendant. Reflecting on these figures, he sharply criticized Parliament for the "arbitrary and indiscriminate manner" in which it "made inroads on the basic presumption of innocence".