By: BANKOLE CLIFFORD EKUNDAYO MORGAN,
LL.M in International Maritime Law
Master in Governance and Leadership
Human Rights Advocate
THE CRIMINAL JUSTICE SYSTEM
Generally, in the criminal justice system, criminal procedure is the explanation of how criminal law is applied in practice. A key concept in criminal proceedings is known as the “Presumption of Innocence”. It is the legal concept that posits that the accused is presumed innocent until the prosecution proves its case against the accused beyond reasonable doubt. However, the accused loses such integrity and dignity only when he is convicted. That is why after his plea an accused can remain silent throughout his trial. The prosecutor by his conduct in proceeding with his case can suggest directly or by implication that the accused is not innocent or the trial Judge may make comments especially in a Jury trial to suggest that the accused is to be considered guilty even before verdict. Conversely, this will be unacceptable and the principle may then lose its ability to be real. The right to the presumption of innocence is one of the guarantees in relation to legal proceedings contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), of which Sierra Leone is a signatory.
PRESUMPTION OF INNOCENCE IN THE SIERRA LEONE JURISDICTION
In Sierra Leone, presumption of innocence is a constitutional right accorded to every person charged with a criminal offence. Essentially, the sacred legal document otherwise known as the Constitution of Sierra Leone, 1991 made provision for presumption of innocence in sections 23(4) and 23(7) respectively.
Section 23 (4) provides that: “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty” and Section 23(7) provide thus: “no person shall be held to be guilty of a criminal offence on account of any act or omission which did not, at the time it took place, constitute such an offence”. Following procedural due process of the law, an arrested person should by law be presumed to be innocent until proven guilty in a competent court of law. Even with the silence of the accused, except for certain exceptions, the burden of proof does not shift. It is important to note that where the principle is not abused and is observed, it is not to frustrate the trial but give it legitimacy.
WHERE THE LAW PERMITS THE SHIFTING OF THE EVIDENTIAL BURDEN
In certain circumstances and sui generis laws, the law permits the shifting of the evidential burden. In that case, the Prosecution only needs to establish certain facts and it will then be the defence who has to prove the contrary or he will be guilty. For example, in various provisions in the Anti-Corruption Act, the evidential burden is placed on the accused. An Example is the offence of Unexplained Wealth. Once the Prosecution proves existence of the wealth, it is the defence who has to prove that the wealth is not unexplained wealth. In other words, he has to explain. The same situation exists with receiving an advantage. It is important to note that even with offences where evidential burden shift, the legal burden to prove the guilt of the accused beyond reasonable doubt will remain with the Prosecution. These are example of Provisions in the Anticorruption Act, 2008 that the evidential burden can shift: `26(2), 27(1), 27(2), 28(4) & (5), 44(2), 53(9a), 92(2), 94, 97, 98, and 129’.
THE GENERAL RULE IS THAT THE PROSECUTION BEARS THE BURDEN…
In the criminal justice system, there is a general rule in criminal proceedings that the prosecution bears the burden of proving all the ingredients of the offence. In other words, the accused/defendant does not have to prove his/her innocence. The reason for the prosecution bearing such a burden is linked with the Presumption of Innocence. In Sierra Leone for instance, by law and practice, when an accused is charged with an offence, he benefits from the presumption of innocence as provided for by S.23 (4) of the Constitution of Sierra Leone, 1991. It implies that the presumption of innocence in Sierra Leone is a constitutional principle which is binding in the criminal justice system. Further, procedural due process of the law depicts that presumption of innocence should be observed, as it protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime charged. The presumption of innocence is one of the most important and ancient rights embodied in criminal justice systems around the world.
PRESUMPTION OF INNOCENCE IS KEY IN THE PROTECTION OF HUMAN RIGHTS.
Presumption of innocence is a fundamental principle in the protection and promotion of human rights. In the respect for the protection and promotion of human rights, presumption of innocence essentially is inalienable. The presumption of innocence is one of the most important and ancient right embodied within the criminal justice system of Sierra Leone. In actual fact, this principle is meant to guide the prosecution as well as the defence lawyer(s) in all criminal proceedings. However, the term “Presumption” should not be confused with the concepts of rebuttable or non-rebuttable presumption. In general, a presumption is a rule which permits a court to assume that a fact is true until a preponderance of evidence disproves or outweighs (rebuts) the presumption. A presumption is rebuttable if it can be refuted by factual evidence, on the contrary, it is conclusive or irrebuttable if the presumption does not provide for a way to be disproved. With this principle, though there are equitable principles, however, I can safely state here boldly that law is not about conscience but evidence, and that generally, in court proceedings evidence decides arguments.
In Part: 2 the all-important question “PRESUMPTION OF INNOCENCE: IS IT A RIGHT OR AN ILLUSSION?” Will be explained under the following headings:
• THE BURDEN OF PROVING THE CHARGE AGAINST THE DEFENDANT IS ON THE STATE, backed by the United States of America Supreme Court locus classicus case relating to the concept of presumption of innocence to the criminal justice system;
• THE PROMINENT CASE OF WOOLMINGTON v DPP (1935) UKHL;
• PRESUMPTION OF INNOCENCE AND THE RIGHT TO REMAIN SILENT;
• ALLEGATION OF COMMITTING AN OFFENCE;
• DEFENCE LAWYER AND THE CONCEPT OF PRESUMPTION OF INNOCENCE, and
• CONCLUSION
Please watch out for part: 2.
