One of the characteristics of our system of justice is its fairness. A great deal of trouble has been taken over the years to ensure that the law gives every person fair play. This has not always worked in practice and however well our laws were crafted there have been times when it has not worked as intended. This will always be the case but the intent has been there. It has taken hundreds, if not thousands, of years to evolve but what we have today stands as a fine example of a fair and equitable system. There are a number of important principles which go to this system of fair play. One of the most important is the presumption of innocence.
One of these principles, the presumption of innocence has been a golden thread running through the British justice system which has been enshrined in law. It is one of the crowning achievements of our justice system. Many of the rights of the individual are based on this presumption. The right to silence is one instance where the guilt or innocence cannot be implied from an accused person’s refusal to speak. Another is the burden of proof, which rests on the prosecution, who have to prove the guilt beyond reasonable doubt. Of course the problem here is that many guilty people will go free but it is better that 1.000 guilty people go free than one innocent person is incarcerated.
What was once considered and inalienable right is now been cast aside as no longer appropriate. The first erosion of this principle that I noticed was with the introduction of unmanned speeding cameras. There have been many criticisms of these but I have heard no one question what I perceive to be the real issue here, the erosion of the presumption of innocence. The owner is presumed to be guilty wether he was driving the car at the time or not. The owner has to prove he was not driving the vehicle to avoid the fine and the loss of points. It is not sufficient for the prosecution to prove guilt, the owner is presumed guilty. At first lip service was given top the presumption of innocence by only applying a fine. Now you get the demerit points regardless, unless you can prove your innocence. No big deal you say. A few hundred dollars and a couple of points – and you fill out a sat dec to say that you were not driving. Then it is the next person’s responsibility to prove their innocence. But it is not the magnitude of the injustice – it is the subtlety that I object to.
This is fine when you are talking about citizens, but what about people who are not citizens? There is much talk bandied about “illegal aliensâ€. Who are these mysterious people? How have they been deemed to be illegal? Which court of law has decided on this person’s guilt? Of course they are not illegal since their guilt or innocence has not been determined. In fact no court can determine guilt or innocence; all that the court can do is find that sufficient evidence exists to prove the charge against the person. They are no more guilty or innocent than before the trial. I am most amused when people who have been found not-guilty stand up and declare their innocence. No; the court did not decide that you were innocent; they merely found insufficient evidence to convict. You may be guilty as mud! But to return to the point, people arrive here who are in danger of their lives, with nothing more than the clothes on their back, and we shuffle them off to inhumane living conditions to languish for years without hope, and label them unjustly as “illegalsâ€. And we call ours a civilised society. If they cannot prove their innocence they are presumed to be guilty and sent back, in many cases to face unjust imprisonment (again), torture and sometimes death.
The last example, and perhaps the worst, is the further erosion of our rights with the anti-terror legislation. I cannot recall anybody raising objections due to the loss of the presumption of innocence. All we were told is that these are extraordinary times, requiring extraordinary measures. That is exactly how injustice is perpetrated. There is always a group of people who, because of their desire for power, see natural justice as an impediment to their cause. They will distort the facts in order to promote their cause. I can just picture the ASIS briefing now. Maybe not deliberately, but they would have subtly emphasised certain aspects of that briefing to scare the poor MPs into accepting this legislation.
No one seems to care that this time honoured principle has been thrown out the window, possibly never to return. Why is this so important? It is quite simple. Once the presumption of innocence is lost there is no reason that any person cannot be presumed guilty. It is only sufficient that we be charged that we are then determined to be guilty. It is then up to person charged to find evidence to prove their innocence. What if the evidence has been lost, or even worse – deliberately destroyed. A person can be incarcerated on no more than the presumption of guilt. This right was established for good reason and to cast it aside with so little consideration is a travesty.
In the past legislators have framed legislation on the principles of justice with an eye to the long term, to serve us for posterity. It seems today that short term expedient is more important than justice. I fear for generations to come where all of the rights we have come to expect will be eroded as this one has.