Presumption of Innocence

Andrew Stumer is a practising barrister in Brisbane, Australia. He obtained his DPhil in law from the University of Oxford in 2008.

• INTRODUCTION 1. THE PRESUMPTION BEFORE THE HUMAN RIGHTS ACT A. History of the Presumption of Innocence B. Burden of Proof 1. Persuasive Burdens 2. Evidential Burdens C. Standard of Proof D. Impact of the HRA E. Conclusion 2. RATIONALE FOR THE PRESUMPTION A. Two rationales for the Presumption 1. Protecting the Innocent 2. Promoting the Rule of Law B. Limitation of the Presumption 1. Limitation of Rights 2. Threat of Serious Crime 3. When the Rationale is Attenuated C. Conclusion 3. SCOPE OF THE PRESUMPTION A. Substantive Approach 1. Rejection in the English Cases 2. Case for a Substantive Approach 3. Other Constraints on Unfair Offences B. Narrow Procedural Approach 1. Confusion in the English Cases 2. Case for a Narrow Procedural Approach C. Broad Procedural Approach 1. Greater Power includes the Lesser 2. Risk of More Strict Liability Ofences D. Conclusion 4. THE PRESUMPTION IN STRASBOURG A. The Content of the Presumption 1. Official Decisions Reflecting Guilt 2. Burden of Proof 3. Presumptions Confined within Reasonable Limits 4. Article 6(2) and Substantive Law B. Limitation of Article 6 Rights 1. Community Interest under Article 6(2) 2. Community Interest and other Article 6 Rights C. Conclusion 5. PROPORTIONALITY AND THE PRESUMPTION A. Confusion in the English Cases 1. Necessity Approach 2. Balance Approach 3. A 'Difference of Emphasis' B. The Nature of the Proportionality Inquiry 1. Legitimate Objective 2. Suitability, Necessity and Balance 3. Proportionality and the Problem of Deference C. Conclusion 6. ALLOCATING THE BURDEN OF PROOF A. Seriousness of the Offence B. Penalty C. Regulatory Offences 1. Minimal Censure and Penalty 2. An Effective Regulatory Regime D. Knowledge and Ease of Proof 1. Relative Ease of Proof 2. 'Peculiar Knowledge' E. Importance of Matters Proved by Prosecution 1. Proof of Wrongfulness 2. Connection between Basic and Presumed Fact F. Conclusion Conclusion

The Presumption of Innocence is an engaging work, providing a thoroughly researched and thoughtfully reasoned thesis that is evident throughout the book. Readers will find that additional commentary is diligently supplied on almost every major issue presented. Further, Stumer avoids preaching to the converted. Opposing viewpoints are openly acknowledged and examined for their strengths and weaknesses. One of the book's great strengths is that it will appeal to readers beyond the legal profession, while also offering very astute observations about certain finer points of legal analysis. Faith Baron Saskatchewan Law Review Volume 74, 2011