Monday, June 21, 2010

The English are all criminals until proven otherwise.

This was my first article for The Record of The Free Church of Scotland.

Your new correspondent from south of the border, though boasting a maternal grandfather born in Leith and after whom he is named, professes ignorance of the specific differences between the laws of our two countries. The presumption of innocence – being considered innocent until proven guilty – is a legal right that the accused in criminal trials has in both countries. This presumption is seen to stem from the Latin legal principle that ei incumbit probatio qui dicit, non qui negat the burden of proof rests on who asserts, not on who denies having committed the crime with which he is charged. The presumption of innocence is in fact a legal instrument created by the law to favor the accused based on the legal inference that most people are not criminals—whether the crime charged was committed and whether the defendant was the person who committed the crime—the state has the entire burden of proof.

With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against him. The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. This convention has been adopted by treaty and is binding on all Council of Europe members.

In England this right is beginning to be eroded. Statute law now provides for criminal penalties for failing to decrypt data on request from the police. If the suspect is unwilling (or unable) to do so, it is an offence. Citizens can therefore be convicted and imprisoned without any proof that the encrypted material was unlawful. Further, the onus is on the defendant to decrypt the data, and having lost the key or the password is not considered reasonable excuse.

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists think that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent through the test..

More pressing for me is that in England the onus is on me to prove that I am not a paedophile, money launderer or illegal immigrant.

After the murder of two young girls in Soham, a crime which could have been prevented if police forces shared information, anyone working with children has to have a Criminal Records Bureau Check. Our church complied. You correspondent resisted as he has no more contact with church children than does any visitor to our fellowship. But the church needed to register with the Charity Commission. They require all church charity trustees to have a CRB check. Elders are ex officio trustees. So in what I regard as an interference of state in church, this elder has had to have a CRB check. I was not aware that the Pastoral Epistles list this as a qualification to be a presbyter.

After 9/11, to prevent money laundering by Islamists, I have to have my identity checked when opening a bank account. When my wife and I gave money to our son to buy a house his solicitor insisted on us proving our identity. The latest fiasco was when I was told to check the identity of all my employees. I asked it this was only non British citizens. I was informed that this was for all employees not only immigrants. Equal Opportunities means you must have ID from everyone and best check it each year.

I have been questioned by a police officer as to why I was taking photographs outside the pub where I had treated my staff to lunch. Presumably this was because the Chief Rabbi’s office is along that street. About fifteen years ago terrorists had planted a bomb there. My name and address were taken. I could be a terrorist supect.

So I believe that more and more the state shows that I am not considered to be an innocent, loyal, law abiding subject of Her Majesty. I must keep on producing the evidence.

I hope that in other parts of the United Kingdom, unlike England, you are not all considered to be potential paedophiles, money launderers, illegal immigrants or terrorists.. Lest you should be worried about your correspondent, he can report that he has now received notification that the Criminal Records Bureau have nothing to report against him.

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Blogger Fishcheese said...

A good piece, and I too feel extremely uncomfortable with much of what concerns you.
Preventative policing is now the order of the day, which necessarily contradicts presumption of innocence, as well as contravening EDHR in principle if not practice too.
Democratic freedom is becoming old-fashioned.

2:25 pm  

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