Pre-Trial Detention and the Presumption of Innocence

PREVENTIVE JUSTICE, A.J. Ashworth, L. Zedner, P. Tomlin, eds., Oxford University Press, Forthcoming

Minnesota Legal Studies Research Paper No. 12-31

16 Pages Posted: 11 Jul 2012

See all articles by R. A. Duff

R. A. Duff

University of Stirling - Department of Philosophy

Date Written: July 10, 2012

Abstract

Pre-trial detention, and other restrictions that may be placed on those awaiting trial, seem to be inconsistent with a robust understanding of the Presumption of Innocence, since they treat the unconvicted defendant as if he is likely (more likely than other citizens) to fail to appear for trial, to try to pervert the course of justice, or to commit other offenses. In this paper I argue that certain kinds of liberty-limiting requirement can legitimately be placed on those awaiting trial, as flowing from the duties of reassurance that citizens owe each other. Pre-trial detention, however, cannot be justified in those terms, and is (except in a very few types of case) inconsistent with the Presumption of Innocence and with proper respect for the defendant’s civic status.

Keywords: Presumption of innocence; bail, pre-trial detention

Suggested Citation

Duff, Robin Antony, Pre-Trial Detention and the Presumption of Innocence (July 10, 2012). PREVENTIVE JUSTICE, A.J. Ashworth, L. Zedner, P. Tomlin, eds., Oxford University Press, Forthcoming; Minnesota Legal Studies Research Paper No. 12-31. Available at SSRN: https://ssrn.com/abstract=2103303 or http://dx.doi.org/10.2139/ssrn.2103303

Robin Antony Duff (Contact Author)

University of Stirling - Department of Philosophy ( email )

Stirling, Scotland FK9 4LA
United Kingdom

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