Is the last post sounding for the presumption of innocence?
Fairness demands that evidence is tested, says Douglas McConnell
You don’t need a law degree to grasp the presumption of innocence. It’s the reason we don’t sack teachers, suspend nurses, or jail neighbours based on rumour alone. It’s why we wait for evidence, not just accusations. For generations, this principle has anchored Scots law and many TV dramas.
But today, that anchor is loosening. The last post may already be sounding.
In recent years, there has been a noticeable shift in how criminal trials are conducted, especially in cases involving sexual or domestic allegations. Statements made shortly after an alleged incident, once considered supporting evidence, are now increasingly treated as sufficient to convict. The threshold for scrutiny is lowering, and the opportunity to challenge key evidence is narrowing.
At the local Sheriff Court, a recent domestic case (I wasn’t involved directly) stopped me in my tracks: one allegation of domestic assault; the complainer failed to attend the trial; no explanation, or live evidence. In the past, the Procurator Fiscal Depute would have made all attempts to trace the complainer or the case would have stalled. Not this time.
The Crown pressed on, armed only with a 999 call and an apparent mark on the complainer seen by police. No opportunity for cross-examination of the complainer. No chance to test the allegation directly with the person who made it.
Still, the trial went ahead. The accused was convicted.
Good news for court efficiency and the complainer, but what about the presumption of innocence? We are now approaching a stage (or, more accurately, are already there) where one person’s word, captured in a statement or emergency call, can virtually be enough to convict a teacher, a nurse, or a neighbour.
This raises a fundamental question: Can we truly retain the presumption of innocence while also promoting the presumption to believe the complainer?
It is a difficult balance. On one hand, there’s a legitimate desire to support victims and remove barriers to justice. On the other, there’s a risk that fairness is being sacrificed in the name of efficiency.
When trials proceed without the complainer present, and prior statements are admitted without challenge, the defence is left to rebut allegations they have never had the chance to test. We are no longer in a system that says “prove it.” Increasingly, the accused is expected to “disprove it”. They require to explain away a version of events they were never allowed to confront. The burden is shifting.
This isn’t just a legal issue; it morphs into a societal one. The justice system doesn’t operate in a vacuum. It reflects our values, priorities, and tolerance for risk. Right now, we’re at a crossroads. Do we want a system that prioritises protecting potential victims even if that means relaxing the standards of proof and reducing the role of cross-examination? Or do we want to reaffirm the presumption of innocence as a cornerstone of fairness, even when the allegations are serious and the public pressure intense?
There are no easy answers. But this is a conversation worth having, in a considered, non-partisan way. Not with slogans or outrage, but with clarity, compassion, and respect for the principles that underpin our legal system and those in it.
Justice must be more than swift; it must be fair. And fairness, I would think, demands that evidence be tested, not simply accepted. It demands that both parties are heard and that neither is presumed right before the process begins.
Douglas McConnell is a Partner, Duncan & McConnell
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