Samith de Silva, Senior Legal Advisor, Asian Legal Resource Centre, Hong Kong
The presumption of innocence is an integral part of the criminal law in all Common Law countries. The basic principle is that a person accused of a criminal offence is innocent until he is proved guilty beyond reasonable doubt. The sanctity of the presumption is exemplified by Lord Sanky’s dictum in Woolmington vs Director of Public Prosecutions, where he stated that
Through 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 accused persons guilt¡K No matter what the charge is, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. (A.C. 462, [1935] AER Rep. 1, p. 405)
While the sacredness of the presumption is often spoken of in Common Law countries, it is sad to observe that in many of these not much attention is paid to the importance of upholding the presumption at the initial stages of its application. Scant regard is also paid to the basic human rights associated with the presumption.
It has to be realized that the presumption of innocence is not invoked only when a criminal trial commences before a court of law, and its implications are not limited to the confines of trial proceedings in a courtroom. As Wills puts it
When incriminatory evidence is investigated and estimated, this antecedent prima facie presumption operates in favor of the party accused. This presumption must prevail until it is destroyed by such a countervailing amount of legal evidence of guilt accumulated to produce the opposite belief. (Principles of circumstantial evidence, 7th ed, p. 265)
Therefore, the application of the presumption is not limited to the confines of the courtroom. Its application begins from the moment a person is investigated.
Sri Lanka is among the countries where the presumption of innocence has received constitutional recognition (article 13[5]) in addition to its being recognized as a legal principle in criminal law. So it is an important achievement of the book An x-ray of the Sri Lankan policing system & the torture of the poor (Basil Fernando & Shyamali Puvimanasinghe [eds], Asian Human Rights Commission, September 2005) that it establishes so clearly how this constitutional provision is violated by the foremost law enforcement authority of the government: the police. The book details a large number of instances where the police have mercilessly assaulted and tortured people from point of arrest, even before considering whether some evidence may exist against them.
Not every criminal case ends with conviction. From country to country the conviction rate varies, depending on the legal system and the ability of its crime investigation authorities. As Wills puts it (with reference to England)
Generally the number of convictions exceeds the acquittals, and more persons who are accused of crime are guilty than innocent. But according to statistics a considerable number of persons who are put on trial are legally innocent. In any particular case, therefore, a party may not be guilty, and it is impossible without a violation of every principle of justice, to act upon the contrary presumption of a superior probability of guilt. It is for this reason the law provides as a settled and inviolable principle, that until the contrary is proved, the accused shall be considered to be innocent, and his case shall receive the same dispassionate and impartial consideration, as if he were really so. (Principles of circumstantial evidence, 7th ed, p. 265)
It is said that several years ago the conviction rate of criminal cases in Sri Lanka stood at around 40 per cent, whereas today it has fallen to below 10 per cent. Yet police assaults are on the increase. If torturing were an effective way to tackle crime, then obviously the crime rate would come down and the conviction rate would go up under the current circumstances. But this has not happened.
What is going wrong? One explanation is that the Sri Lankan police today do not use proper investigation methods but are only interested in extracting a confession after giving a couple of blows to a suspect, perhaps while introducing some piece of ‘evidence’ that they think may help to prove the case and close the investigation. This is far less trouble for an officer than to enter into a prolonged interrogation that might last into late hours. It is natural for most people to admit guilt after a few blows by a police officer in his premises. Many investigations end with that: the police report their findings to court, and although they do not have sufficient evidence to prove the suspect’s guilt, move to keep the person in remand. The period of remand is extended a couple of times and eventually the suspect is discharged. So everything goes on.
This can be said to be the superior probability of guilt. It is what is used as the basis for police investigations in Sri Lanka today, in defiance of the presumption of innocence.
