Boris is right. Tinkering with the presumption of innocence is, unfortunately, a minor change in the law

Boris Johnson has called for a change in the law. He wants to shift the burden of proof on those accused of travelling to Iraq and Syria to join ISIS. No longer will the prosecution be required to prove that they intended to join ISIS. Rather the accused will have to prove that they travelled there for innocent purposes.

There has been near universal condemnation of Boris’s proposals. The Prime Minister called it a knee-jerk reaction. Nick Clegg was not a big fan either. In addition to rejecting his proposals commentators on both the left and the right have taken issue with Boris’s statement that this was a “minor change” in the law. They argued that instead it was an attack on this hallowed principle that is the presumption of innocence. The fact Boris did not realise that was further proof that he is unfit to become Prime Minister.

However, Boris is completely right. Not about the substantive proposal but about the fact it represents a minor change in the law. The fact of the matter is that the presumption of innocence has in the past few decades been severely eroded. In 1935 we were told by the Lord Chancellor Viscount Sankey that “throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt” [1]. There were only two exceptions: (i) the defence of insanity and (ii) statutory exceptions.

How often did Parliament by statute make exceptions to this golden thread? Andrew Ashworth and Meredith Blake attempted to find out in 1996 [2]. They look at how many of the offences triable in Crown Courts derogated from the presumption of innocence. It was not 5%, 10% or 20%. Out of 540 offences, 219 involved some form of departure from the presumption of innocence. That’s just over 40%! In the Magistrates’ Courts the position was hardly better. There, the defendant bears the burden of proving “any exception, exemption, proviso, excuse or qualification” [3]. At this point one can ask whether the exception has swallowed the rule. So Boris was not wrong when he described it as a minor change in the law.

The situation has not really gotten better since 1996. Parliament continues to reverse the burden of proof on a number of offences. In one respect, however, the situation has gotten better. Previously, if Parliament imposed a reverse burden of proof the courts would just have to apply it. However, following the coming into force of the Human Rights Act, the courts have been able to de facto nullify some of those reverse burdens.

For example in R v Lambert [2001] UKHL 37, the House of Lords was considering a provision of the Misuse of Drugs Act which required a defendant found in possession of a package containing drugs to prove that he did not know that it contained drugs. If the defendant failed to discharge that burden he would be found guilty of possession of drugs. The House of Lords held that this was an unjustfied infringement of the presumption of innocence. So, this provision was read as merely requiring the defendant to adduce evidence that he did not know the package contained drugs. The burden would then be on the prosecution to prove beyond reasonable doubt that this evidence was untrue.

Those wanting to repeal the Human Rights Act (and withdrawn from the European Convention on Human Rights), whilst still adhering to the presumption of innocence, should think carefully about that.

In the meantime the outrage sparked by Boris’s comments should be directed to adopting the proposal the Criminal Law Revision Committee made in 1972: that there should not be reverse burdens in English criminal law [4].

1 Woolmington v DPP [1935] AC 462 at 481

2 “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306-317

3 Section 101 Magistrates’ Courts Act 1981

4 Criminal Law Revision Committee, Eleventh Report, Evidence (General), Command Paper 4991 of 1972, para 140

Rajiv Shah is a PhD student in Law at the University of Cambridge.

No, Boris – we are never guilty until proven innocent

The proximity of the 800th anniversary of Magna Carta next year makes Boris Johnson’s Telegraph column from Sunday even more shocking. His plan to arrest anyone who travels to Syria or Iraq without ‘good reason’ utterly abandons the presumption of innocence. Instead, all travelers would be presumed guilty – and guilty of the extremely serious charge of terrorism – unless they could somehow convince ‘the authorities’ otherwise:

We also need to be far more effective in preventing British and other foreigners from getting out there…We need to make it crystal clear that you will be arrested if you go out to Syria or Iraq without a good reason. At present the police are finding it very difficult to stop people from simply flying out via Germany, crossing the border, doing their ghastly jihadi tourism, and coming back. The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a “rebuttable presumption” that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.

Boris of course has the laudable aim of curbing the jihadists. But that is just the sort of ambition that has excused too many careless erosions of our ancient freedoms. Already he calls for the return of control orders and laments how hard it is to press charges against British citizens without evidence; as if the assumption of innocence until proven otherwise has not acted as the ultimate safe-guard of citizens against radicals throughout modern history.

According to the Mayor, such controls and assumptions need merely a ‘swift and minor’ change in the law. Are our Magna Carta liberties to be so swiftly and so triflingly abandoned?

Democracy’s not all it’s cracked up to be you know

As Churchill pointed out democracy does have something going for it, that it’s better than all other methods anyone’s ever tried. But that doesn’t mean that it’s perfect, not by a long shot. And interestingly we’ve that nice Owen Jones making the point for us:

The Aids crisis was building; more than half the population believed homosexuality was “always wrong”, peaking at 64% in 1987 when just 11% opted for “not wrong at all”; and later that decade the homophobic legislation, section 28, was introduced.

Meaning that under the pure rules of democracy that Section 28 legislation was entirely justified. Indeed, it should have been introduced as it was obviously the majority view of the people. All of which is a problem with democracy: for there are quite obviously times when that will of the majority conflicts with the civil liberties of various minorities. Meaning that we have to decide which we are going to regard as more important, those civil liberties or that will of the majority.

Those times that we have to decide coming in a variety of flavours. We could most certainly gain a majority for the idea that we should string the paedos up without much of a trial. There’s actually a substantial campaign to insist that legal protections for accused rapists should be weakened, even to the point (not in the UK thankfully, not yet, but in the Antipodes) that the presumption of innocence should be dropped. Here at home we have a campaign to insist that prostitution among consenting adults must be made illegal: quite clearly a violation of that right to ownership of ones’ own body and the income therefrom. And there’s been campaigns against the rights of property ownership for most of the past century. A subset of which today is the idea that the shareholders in a company may not decide how much they wish to pay the managers in their own employ (in the name of “equaliteeee” of course).

And the campaign against the arbitration part of the Transatlantic Trade and Investment Partnership is exactly a complaint that that treaty would insist that governments must obey the law of the land over and above whatever democracy demands as changes.

Jones has provided us there with a useful example of when those civil liberties are more important than whatever it is that the mob thinks. We should remind him of this point when he next, or his ilk, suggests taking away our economic liberties. Just because the Demos can be whipped into howling for it does not make a policy one we should enact.

Roger also trusts the state more than I do

There’s another subject that Roger and I disagree about profoundly.  He trusts the state more than I do.  Whenever he sees anything not going the way he’d like it to go, he calls for state action to “put it right.”  This applies to big things, such as instances of what he calls “market failure,” and it applies to little things such as people consuming foods or drinks he disapproves of.  In both cases he wants the state to stop it.

There are undoubtedly cases of market failure.  Left to themselves, business people would probably, like many of us, go for the easy way out, protecting their market share by monopolies or cartels, rather than by trying to keep their quality up and their prices keen.  Certainly we need laws to stop them doing this.  Where I part company with Roger is that he seems to think of politicians and civil servants as dispassionate guardians of the public good.  I see them as being rather like other people in pursuing their own advantage where they can.  Politicians want to be re-elected, and bureaucrats want to be promoted.  Both will, at times, act in their own interests, just as others do, even in some cases where this is against the public good.

When Roger talks of “society,” he doesn’t use it to refer to communities working together for common purposes, he uses it to mean the state, the political body that has monopoly control of the laws and of the powers to enforce them.  The problem is that when those powers are concentrated, people try to use them to impose their agenda on others.  Because some people drink unwisely, Roger supports minimum alcohol pricing.  Because some people become obese, Roger wants ‘fat taxes’ on sugars and fats.  In these cases he claims to be acting in people’s best interests, but when he votes to ban fox-hunting, it’s simply that he doesn’t want them doing it.

Roger is happy to give the state more power, confident it will be used appropriately, whereas I rather suspect that whenever the state gains extra powers, it will use them for whatever purpose it wants.  Surveillance powers granted to thwart terrorists will probably end up being used to prosecute people for not sorting their garbage into the right bins.  In short, Roger sees the state as a means of making people live as he thinks they should, whereas I see it as a source of power waiting to be abused by anyone who can grab control of its levers.

An African American high school dropout is more likely to be in jail than employment

Quite the most horrific number to come out of Paul Ryan’s poverty plan was the point that for young African American men, those who have dropped out of high school, they’re more likely to be in jail than they are in employment. John Cochrane has picked up on this and so subsequently has Mark Perry, from whom I’ve borrowed that chart above.

The cause, of course, is the horrible confluence of the appalling inner city education system in the US plus the effects of the near entirely insane “War on Drugs”. And do read Cochrane’s piece where we find this:

And really, that’s just the surface. Neal and Rick’s numbers don’t count the numbers on parole or otherwise under the supervision of the criminal justice system. And their numbers miss one of the biggest effects: In America, once you have a criminal record — often even just an arrest record — getting a job becomes next to impossible. So the flow through the criminal justice system, as much as the numbers currently in jail, is an important measure of its effect.

Becky Petit’s Invisible Men: Mass Incarceration and the Myth of Black Progress calculates the cumulative risk of imprisonment, which gives a sense of how many people are in this quandary.

The less than high school black number rose from 14.7% in 1979 to an astounding 68% in the latest numbers. Nearly 70 percent of black high school dropouts will spend time in jail. And pretty much end their hopes for conventional employment as a result. (Things aren’t great for white high school dropouts either, and 21% for black high school graduates is pretty shocking too.)

The UK’s not this bad, not yet, but we do have a large racial imbalance in the prison system. And again it’s largely due to those two activities on the State: the inner city education system and that War on Drugs.

We here support the legalisation (or at the very least, the decriminalisation) of drugs on the entirely liberal grounds that they’re out bodies and self-ownership means that we as individuals get to decide what goes into them. But if that’s not enough for you those numbers above might, or at least we hope they would, sway you over to our side of this argument. For the War on Drugs is having a great deal too much collateral damage, isn’t it?