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Johnson’s presumption of guilt is no solution to Jihad John

Image © Huffington Post

About The Author

Chris Sykes (Writer)

Chris holds a BA in History from the University of Oxford, and subsequently completed the GDL in 2012. Chris is an Inner Temple Princess Royal Scholar, and will commence the BPTC in September 2014. Chris is a passionate opponent of capital punishment and a strong supporter of legal aid.

The execution of the journalist James Foley on 20th August by a militant of apparently English origin confirmed that the menace of Islamic State (IS) had come close to home. The anonymous killer (who has since been dubbed ‘Jihad John’) embodied the potential threat that Britons currently fighting for IS and other Islamist rebel groups in Syria and Iraq may soon return to conduct terrorism on home soil. The atrocity of Foley’s killing, and the deeper threat it represented, demanded a response from British politicians and many obliged. One response of interest came from Boris Johnson in his column for the Daily Telegraph. It was noteworthy due to his likely aspiration to lead the Conservative party, but also for suggesting the presumption of innocence (POI) is disposable in the interests of security. This article disagrees with that suggestion.

The column itself took a chummily bloodthirsty tone. Johnson claimed that most Britons want ‘someone to come along with a bunker-buster’ to kill Foley’s executioner ‘as fast as possible’. Alongside explosives, he also proposed legislation that could expedite the prosecution of Britons suspected of returning home from conducting ‘ghastly jihadi tourism’ overseas. This could include a ‘swift and minor’ legislative change to establish a ‘rebuttable presumption’ that those who visit warzones without notifying the authorities have done so for a terrorist purpose. In effect, this would undermine if not dispense with the POI in certain cases of suspected terrorism.

Johnson’s rebuttable presumption implies that the IS threat is so grave that principles like the POI can be weakened for the sake of our security. Johnson perceptively noted that ‘it is hard to press charges without evidence’ and proposed his rebuttable presumption as one means of surmounting this hardship. The proposal was supported by Sir Bernard Hogan-Howe, Commissioner of Police of the Metropolis, who ascribed the difficulty of collecting such evidence to the regional conditions in warzones like Syria. The rebuttable presumption could alleviate this difficulty and, at any rate, ‘[if Britons] can prove they haven’t been [involved in terrorism] then that’s up to them.’

This article argues that Johnson’s presumption is an undue infringement upon the POI. At the core of this argument is a respect for Viscount Sankey’s assertion that the ‘golden thread’ of English criminal law is indeed found in the burden on the prosecution to prove the defendant’s guilt (Woolmington v DPP [1935] AC 462). Sankey’s commendation of the POI has become axiomatic but it should be remembered that English courts were prone to operate on a presumption of guilt until the late 19th Century (Nicola Lacey, Deconstructing Criminal Law, p81). The situation is, of course, different today. The POI is now enshrined in Article 6(2) of the European Convention of Human Rights (ECHR) as well as being widely appreciated as vital to the fairness of most criminal trials. In the words of Lord Bingham: ‘the overriding concern is that a trial should be fair, and the [POI] is a fundamental right directed to that end’ (Sheldrake v DPP [2004] UKHL 43). The relatively recent genesis of the POI does, however, mean that it should not be taken for granted.

The POI is admittedly not an absolute principle. Article 15 of the ECHR permits derogations from it ‘in time of war or other emergency threatening the life of the nation’, and multiple rebuttable presumptions already exist in statute (e.g. under s. 75 of the Sexual Offences Act 2003). It is open to Parliament to legislate for such presumptions if they strike a necessary balance between justice and expediency. Nevertheless, case law offers guidance as to when such presumptions unduly infringe the POI. The guidance differs according to whether the presumption places a ‘legal’ or ‘evidential’ burden of proof on the defendant, and a complete understanding of such guidance requires a level of discussion beyond the limits of this article. But, generally speaking, Sheldrake established that a rebuttable presumption is less likely to be fair if the defendant faces a severe penalty; if the offence is ‘truly criminal’ and carries social stigma with it; if it is difficult for the defendant to access the evidence necessary to rebut it; and if it risks convicting innocents. This is a rough explanation of the guidelines but it assists any critique of Johnson’s presumption.

There is a case to be made that Johnson’s presumption fails these guidelines. Terrorism is an extremely serious crime and those found (or presumed) guilty of it can expect severe penalties and stigma. The nature of the offence covered by the presumption (i.e. overseas terrorism) is such that the relevant evidence, exculpatory or otherwise, is not easily accessible. This is apparent in Hogan-Howe’s complaint of how difficult it is for the State to collect enough evidence to prosecute suspected terrorists. If such collection is hard for the State then we can assume it would be even harder for the individual defendant. This difficulty could prevent defendants from accessing the evidence necessary to rebut Johnson’s presumption. This in turn could lead to the conviction of those who are entirely innocent but for their failure to notify the authorities of their travel plans.

In response to this criticism, Johnson would argue that the threat from homecoming jihadists is such that voters should be terrified into accepting his proposals. He would, however, do well to remember that security concerns ‘do not absolve member states from their duty to observe basic standards of fairness’ (per Lord Bingham, Sheldrake). Ultimately, the justification for his presumption stands or falls on whether it strikes an acceptable balance between national security and the defendant’s rights, particularly their right to the POI. Johnson’s article implies that IS poses such a serious threat that his proposals do strike this balance.

This justification is, however, undermined by the recent and significant expansion of the state’s powers to fight crime and terrorism. The extent of this expansion was made clear by the Snowden Revelations, but also by the voluminous legislation passed in recent years. The last decade saw some 50 crime and punishment statutes and 3,000 criminal offences pass into law (John Hostettler, History of Criminal Justice, p307). These have already reduced the defendant’s rights to an extent that concerns observers. For example, Hostettler criticised the Criminal Justice Act 2003 for ‘reduc[ing] the rights of defendants in regard to hearsay, previous convictions, the presumption of innocence, double jeopardy, the right to silence and the exclusion of evidence of bad character’ (Hostettler, p309). Johnson’s rebuttable presumption would tilt the scales yet further to the advantage of the State and disadvantage of the citizen. The State’s existing powers suggest that this would not strike the balance sought.

Johnson’s presumption would be less problematic if the State was infallible, but this is obviously not the case. Law-enforcement agencies are at times known to be ‘over-eager to secure a conviction of those they [wrongly] believe to be guilty, and… often they will focus on an initial suspect at the expense of considering alternative lines of inquiry’ (Ashworth and Redmayne, The Criminal Process, p24). The POI guards against this risk of investigative error or prejudice so that ‘reliable evidence is produced which can form the basis of an effective trial’ (Ashworth, p24). Johnson’s presumption would mostly dispense with the State’s obligation to gather such evidence in certain terrorism cases. This would facilitate prosecution but leave citizens that much more vulnerable to miscarriages of justice and the State that much less accountable for avoiding them.

Some readers might not be worried by this outcome and welcome Johnson’s presumption as a means of protecting the blameless majority from a dangerous minority. This attitude is understandable but its proponents should consider whether it promises the justice system they really want. The POI acts as a safeguard to minimise the risk of convicting innocents. It expresses a preference to err in favour of acquittal rather than conviction, a preference described as a ‘cardinal value of the criminal process’ (Ashworth, p25). Granted, the reader who is indifferent to the POI may also be indifferent to that cardinal value. But such indifference increases the likelihood that our justice system will convict those who are in fact innocent. This is reprehensible in itself, but also corrosive to the legitimacy and moral authority of the criminal courts as a whole. Undermining the criminal courts is not in the interests of a lawful society regardless of whether or not it prioritises security over the defendant’s rights.

Johnson is right to stress the threat of IS but wrong to recommend that our best defence lies in smart bombs and daft laws. The recent expansion of the state’s power suggests we have reached a point when our insecurity should be attributed to reasons beyond the absence of yet more illiberal legislation. This is partly about protecting hard-won rights; but also about demanding an approach to counter-terrorism that works harder to maintain a society that is both secure and just. The legal and practical shortcomings of Johnson’s rebuttable presumption of guilt exemplify an approach that fails on both counts. How much more inspiring it would have been if he had proposed workable counter-terrorism policies that did not rely on surrendering one of the principles that make our society worth fighting for in the first place. Instead he hectored us to exchange a little more liberty for a little more security, but it is high time our leaders could guarantee one without expense to the other.

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Tagged: Anti-Terror, Criminal Law, Justice, Rule of Law

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