Freedom from Punishment

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A defendant facing criminal prosecution should be considered innocent until proven guilty. If this is the case, the state cannot punish an individual for a crime they have not yet committed. However, in certain circumstances it may be necessary to detain an individual pending trial. The following factors are used by many courts to determine whether a defendant should be detained prior to trial.

  1. Gravity of the offense. This may include the facts surrounding the alleged offense, the category of the crime (felony, misdmeanor, etc) and the sentence range associated with the crime.
  2. Risk of flight by a defendant while trial is pending. The use of a bail is one way of mitigating this factor.
  3. Protection of society from dangerous individual
  4. Protection of individual from society
  5. Risk that the accused will destroy evidence.

Detention should never include punishement and in theory, pre-trial detainees should be separated from convicted prison population.

International Sources

International Covenant on Civil and Political Rights

Article 10

  1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
  2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
  3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.



  • 77(2) Every person who is charged with a criminal offence
    • (a) shall be presumed to be innocent until he is proved or has pleaded guilty.



  • 28(3) Every person who is charged with a criminal offence shall
    • (a) be presumed to be innocent until proved guilty or until that person has pleaded guilty.

See Rights of the Accused