THE PRESUMPTION OF INNOCENCE
CLICHE HAS IT that you are ‘innocent until proven guilty’. Unfortunately (or perhaps not) the maxim is only legally, not factually true, as one utters it in social terms. It is better to reserve the phrase for use in the criminal law, and to understand how civilised society describes allegations of suspicious behaviour.
As Roy Hattersley wrote so engagingly, listening to what people say is important, but it provides no answer to a problem that the law prescribes. To explain the law, one must lapse into legal language. The law regards a person as innocent only from the moment the accused faces trial; it ends with the conclusion of the court proceedings.The conclusion of a criminal trial is that an acquittal of a criminal offence, whether by the trial jury or by the Court of Appeal in quashing a jury conviction, is of no value whatsoever in English law, except as the result of a prosecution by the Crown; it is as lawful to assert that an acquitted person was guilty of the offence of which he has been acquitted as it is to make any other assertion which would reflect on the person’s reputation. In any such case, a statement about a person’s reputation - ‘innocent until he is proved guilty’ - is legally meaningless. The maker of such a statement can be sued for libel, and has the same burden of proving the truth of the assertion; the fact of the acquittal is irrelevant. The only qualification is that, by section 4 of the Defamation Act 2013, Parliament has now added a public interest defence, primarily but not exclusively in respect of responsible journalism. How the law comes to such a result has the consequence that the phrase is only evidential; it applies only within the system of criminal justice on the question of a presumption of innocence until proven guilty.
The Criminal Appeal Act 1968, by section 2(3), provides that ‘an order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and order of acquittal’.
The successful applicant is therefore in the same position as if he had been acquitted by a jury, no more and no less. The acquitted person cannot be tried for the offence of which he has been acquitted, or for any offence of which a jury could have convicted him on that indicted. This is known as the double jeopardy rule, which can now be inapplicable in the limited and unusual case where the Crown has fresh evidence of which it could not have had any knowledge at the time of the acquittal.The law as stated is taken from a controversial passage from Lord MacDermott in Sambasivan v Public Prosecutor, MaIaya:1
The verdict of an acquittal... is not completely stated by saying that the person cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim ‘res judicata pro veritate accipitur’ is no less applicable to criminal and civil proceedings.
There are difficulties in reconciling this extension of the effect of an acquittal with the decision of the House of Lords in DPP v Humphreys,2 but assuming it to be correct, it marks the limit of the effect of an acquittal: the acquittal is binding and conclusive between the parties to the adjudication, that is between the Crown and the acquitted person. It is not binding and conclusive between the acquitted person and anyone else, or between the Crown and anyone else. If A has been acquitted of an offence, the Crown may subsequently indict B for aiding and abetting, counselling or procuring to commit that offence and, at the trial of B, adduce evidence that proves that A was in fact guilty of the offence of which he has been acquitted. A’s acquittal is not admissible in the evidence at the trial of B: Hui Chi-Ming v R.3 Where A and B are alleged to have conspired together to commit an offence, and there is evidence against B (e.g. a confession) which is inadmissible against A, the jury may properly convict B of conspiring with A, while acquitting A of conspiring with B: DPP v Shannon.4 This is so whether A and B are tried together, or B is tried after A’s acquittal.
This all appears to be gobbledegook, but is now entrenched. It establishes the ambit of innocence; the law establishes it conclusively - the decision to1 [1950] AC 458, 474 (PC).
2 [1977] AC 1.
3 [1992] 1 AC 34 (PC).
4 [1975] AC 717 (HL).
acquit has no ‘after-life’, unless and until there is some indicated development under Article 6 of the European Convention on Human Rights at Strasbourg.[143]
Since jurors are always directed that the jury must not convict unless they are sure of the accused’s guilt, the only safe deduction from a verdict of acquittal is that the jury were not ‘sure’, or that they retained a reasonable doubt (the traditional formula as the test for a not-guilty verdict). A jury which is satisfied only that it is more probable than not that the accused is guilty, or even that it is highly probable that he is guilty, will acquit if, as one assumes, they follow the direction of the judge. Thus the Lord Chancellor’s Law Reform Committee in 1967 on whether acquittals should be admissible in evidence rightly concluded: ‘So the acquittal, if admitted for “what it is worth”, would be worth nothing: not only would it have no effect on the onus of proof but it would be without any probative value’.[144] The Committee recommended that, on the grounds of public policy, defamation proceedings should be treated differently, and that proof of an acquittal should be conclusive proof of innocence. Parliament at that time did not accept the recommendation, and so the law remained the same: in Loughams v OIdham Press Ltd[145] the defendant in the libel action successfully pleaded the defence of justification, proving on the balance of probabilities that the claimant had committed the offence of murder. It is the same when the Court of Appeal quashes a conviction, as when a jury acquits.