There is a golden thread that underlies our criminal justice system. Articulated in the famous English case of Woolmington v. DPP by Lord Sankey, speaking for the House of Lords on an appeal from a conviction for murder, uttered the now famous words; “Throughout the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoners guilt…if at the end and on the whole of the case, there is a reasonable doubt, …the prisoner is entitled to an acquittal. No matter what the charge or where the trial….”
Recent news associated with the Gomeshi sexual assault trial raises questions whether the general public really understand our criminal justice system. The old and well known adage: “Better that ten guilty persons escape than that one innocent suffer” finds its ancient origins in Genesis. The golden thread of the presumption of innocence is the unwavering principle that guides every criminal prosecution. The accused is presumed innocent unless his guilt is proved beyond a reasonable doubt. in all cases, the accused is entitled to the presumption of innocence. This presumption he carries into and throughout the trial until the verdict is rendered and he is found to be guilty or not guilty.
Some news articles, public reactions and editorial cartoons seems to suggest an antediluvian justice system at work that puts ‘victims’ on trial. How unfair that they are subject to rigorous, intrusive and embarrassing cross examination – so goes the narrative. Such a point of view implicitly presumes the guilt of the accused and portrays the witness as being twice victimized. Such views seem to be peculiar to cases of sexual assault. Yet there are many victims of crime and the criminal justice system operates in the same fashion in all cases. To be clear, if someone is to accuse YOU of a crime, then you will expect that person must take the witness stand and face you and provide the evidence to the court. What would you think, how would your feel, accused of a crime you did not commit and the accusation never tested, the accuser never questioned? It would be a Kafkaesque world. The days are long since gone, in our democracies governed by the rule of law, when the mere allegation of a crime is deemed sufficient to exact punishment. We no longer suffer the perfidy of the Star Chamber when you could be convicted in abstentia, without the right to face your accuser or the court.
Unfortunately, our efforts to be fair to an accused within the system do nothing to protect the person before trial, while still presumed innocent. Today, social media and mainstream media can irrevocably eviscerate a life in a matter of hours.
Whatever may be thought of Mr. Gomeshi as a human being, he is entitled to the presumption of innocence for the crimes he is accused of. He was not on trial for misbehaviour or even leading a secret life of sorts. He was on trial for very specific matters alleged by very specific individuals.
There is another point worth noting. Two of the three complainants who gave evidence at the trial were afforded anonymity. There was a court ordered publication ban on their identities. Mr. Gomeshi was publicly accused of these unproven crimes many months in advance of trial. He is publicly humiliated and his reputation is trashed. It matters not what the outcome of the trial will be – even if found not guilty, his reputation is irreparably damaged. But what of the complainants – not just in this case but in any case. They may not enjoy their courtroom experience, but in effect they can come forward and make false accusations of sexual assault. The accused faces the loss of reputation, employment, social stigmatization and risks the loss of his freedom – the complainant faces no risk whatsoever. Shouldn’t the public be entitled to know the identity of the complainant as well as the identity of an accused? Such a double standard does not enhance the notion of presumption of innocence.