A deeply embedded principle?
Should the accused in a criminal trial enjoy the presumption of innocence?
This is a long established principle of criminal law in the Western World that I have taken for granted since my first days at university. I always remember Professor Kenny Miller (of Strathclyde University’s Law School) correcting students who spoke in error about the ‘guilty’ person in a Scottish criminal trial. They were quickly admonished and reminded of the maxim that everyone is innocent until proven guilty.
Indeed, Article 11 of the United Nations’ Universal Declaration of Human Rights takes the view that the presumption of innocence is a fundamental human right.
Furthermore, Article 6 of the European Convention on Human Rights establishes the right to a fair trial and this includes the presumption of innocence. In the United Kingdom, this very important right has been incorporated into Scots, English and Northern Irish law via the Human Rights Act 1998. In Scotland, we, of course, have an additional layer of protection with the Scotland Act 1998.
Article 48 of the EU Charter of Fundamental Rights also echoes Article 6 of the European Convention.
Going back to the historical record, the Byzantine or Roman Emperor Justinian I emphasised the presumption of innocence for the accused as part of codification of Roman Law between 529-534 CE. Admittedly, Justinian was building on previous Roman legal practice as the Emperor Antoninus Pius (he of the less well known Wall for our Scottish readers) had introduced the principle during his reign between 138 and 161 CE.
The Romans would say Ei incumbit probatio qui dicit, non qui negat; translated as Proof lies on him who asserts, not on him who denies.
Jewish and Islamic scholars have, historically, also placed huge importance on the presumption of innocence as a cornerstone of their legal practices. Both the Jewish Talmud and Islamic Hadiths (sayings or practices of the Prophet) testify to this.
The Carlos Ghosn Affair
So, why am I reflecting on this area this dull and rainy second day of the New Year?
The escape from Japan of Carlos Ghosn brought the principle forcibly to mind this New Year. Mr Ghosn is the former Chief Executive of Nissan who has been accused of defrauding his former employer.
Mr Ghosn was under effective house arrest in Japan until a few days ago. Allegedly, with the help of his wife, he escaped from that country to the Republic of Lebanon (of which he is a citizen) The escape reads like something from a Hollywood movie script (the Mission: Impossible series anyone?) with Mr Ghosn hiding in a musical instrument case (presumably not a violin case) in order to make good his unauthorised exit from Japan.
A link to an article about Mr Ghosn’s escape in The Independent can be found below:
https://edition.independent.co.uk/editions/uk.co.independent.issue.020120/data/9266461/index.html
A link to a YouTube film about the Affair can be found below:
What is Mr Ghosn’s motivation for leaving Japan in this dramatic way? He claims to have no faith in Japanese justice in that the legal system of that country presumes his guilt.
The Japanese criminal justice system
Not possessing a great deal of knowledge about Japanese criminal practice, I admit that I was somewhat intrigued by Mr Ghosn’s assertions.
I had also just finished reading Owen Matthew’s excellent biography* of Richard Sorge, probably the most successful spy in modern history (and a possible role model for James Bond). Sorge had been spying for the Soviet Union in Japan in the 1930s and 1940s until he was unmasked and arrested in 1941. The treatment of Sorge at the hands of the Japanese criminal justice authorities forms part of the climax to the book.
As Owen Matthews notes:
‘Japanese justice, surprisingly, for an authoritarian state, turned out to be both thorough and scrupulous. The three volumes of investigative documents prepared by the Tokko [the Japanese Police] are exhaustive, far more professional than the cursory evidence which the NKVD [the forerunner of the Soviet KGB] assembled to convict hundreds of thousands of suspected spies in the 1930s.’ [p345]
Does the Japanese criminal code presume the guilt of persons on trial, as opposed to their innocence?
I decided to investigate …
… what I discovered was something rather more subtle.
The Japanese legal system does recognise the right of the accused to be presumed innocent until proven otherwise – despite Mr Ghosn’s claims. The burden of proof rests on the prosecution to demonstrate the guilt of the accused (as in Scotland, England, the United States etc).
There are indeed criticisms of the Japanese legal system that could be made (but no legal system is immune from criticism). In particular, the practice of not allowing suspects to have access to a lawyer during Police interrogation has been highlighted as a weakness of the system.
Before Scots lawyers get too smug, we would do well to remember the Peter Cadder case which led to an overhaul of Scottish criminal practice (see Cadder v HMA [2010] UKSC 43).
Another criticism of the Japanese legal system seems to centre around the practice of prosecutors rearresting an accused when s/he has been acquitted by a lower court. The accused is then taken before a superior criminal court for a further trial and, possibly, conviction.
That said, in Scotland (and in England), we have abolished the double jeopardy rule, but this does not mean that prosecutors have free range to do what they like.
Finally, an accused who maintains his/her innocence under the Japanese legal system, is often not granted bail and can therefore be expected to undergo a lengthy period of detention until the case is brought to trial (Mr Ghosn was perhaps luckier than most being under house arrest). Critics of this aspect of the legal system have pointed out that it puts suspects under duress making them more likely to make an admission of guilt. Mr Ghosn had apparently spent 120 days in detention before bail (with very strict conditions) was granted last year.
Links to articles about the Japanese legal system from the local media can be found below:
https://mainichi.jp/english/articles/20190109/p2a/00m/0na/015000c
Conclusion
The principle of presuming the innocence of the accused in a criminal trial until proven otherwise is a deeply rooted one in the Western World. It is a cornerstone of our justice systems. The United Nations regards it as a fundamental human right in terms of the Universal Declaration of Human Rights.
Yet, to assume that it is a Western concept alone, would be a monstrous conceit. Jewish and Islamic legal scholarship have both emphasised the importance of this principle.
Japan, as a member of the United Nations, also recognises the importance of the principle – which makes some of Mr Ghosn’s claims somewhat misjudged. Yes, the operation of the Japanese criminal justice system can and is the subject of criticism, but this observation also applies to every other legal system in the World.
* “An Impeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)
Copyright Seán J Crossan, 2 January 2020
Seán Crossan's Scots Law 
Would you say the presumption of innocence conflicts with bail and remand?
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In an ideal world, absolutely … but what if the suspect is a flight risk or has a previous record for violence and intimidation? The State has to balance the rights of the individual against its duty to ensure the protection of the community and the administration of justice. It can be a difficult call to make.
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