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123 S. African L.J. 63 (2006)
Four Threats to the Presumption of Innocence

handle is hein.journals/soaf123 and id is 65 raw text is: FOUR THREATS TO THE PRESUMPTION OF INNOCENCE ANDREW ASHWORTH* Vinerian Professor of English Law, University of Oxford I am deeply honoured to have been invited to Cape Town to give the third Beinart lecture. My choice of subject calls for an explanation, since I appear to have selected one of the most obvious and non-contentious topics possible. Does not every international human rights document and every constitutional bill of rights take the presumption of innocence as a basic requirement of civilized existence? The Bill of Rights in the South African Constitution states in section 35(3) that 'every accused person has a right to a fair trial, which includes the right ... (h) to be presumed innocent'. The European Convention on Human Rights declares, in art 6(2), that 'everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law'. Can we not therefore take it for granted that the prosecution bears the burden of proving criminal charges beyond reasonable doubt? The answer, as many people here realize, is no. In this late modem era, constitutional rights are not always placed on a pedestal and tend sometimes to find themselves in the swirling waters of politics, in a struggle against demands for greater security and other manifestations of what has been termed 'the risk society' - a social and political context in which both governments and individuals are constantly thinking about the risks of harm and how to minimize them. Assessing situations and persons from the point of view of perceived risk sits rather awkwardly with respecting the dignity of others as full, rights-bearing citizens. My argument tonight is that the presumption of innocence needs to be debated and defended because there are threats to it from at least four sources - confinement, by defining offences so as to reduce the impact of the presumption; erosion, by recognizing more exceptions; evasion, by introducing civil law procedures in order to circumvent the rights conferred on accused persons; and side-stepping, by imposing restrictions on the liberty ofunconvicted persons but not depriving them of their liberty. In order to assess the significance of what I describe as threats to the * LL B (LSE) BCL (Oxon) Ph D (Manchester) DCL (Oxon) FBA. I gratefully acknowledge the assistance derived from comments on earlier drafts from Mike Redmayne, Paul Roberts and PJ Schwikkard.

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