3. Presumption of innocence

The presumption of innocence means that an accused person is innocent of the accusations until a judge or jury of their equals has determined they are not. The accused does not have to prove innocence - that is presumed. The accuser, acting through a prosecutor, must convince a court of their guilt "beyond reasonable doubt". Under common law in modern democracies, if a judge or jury has any doubt that the accused is guilty, they must return a verdict of not guilty.

This has important implications for journalists in many areas of the law. For example, when reporting a trial you must not say the accused is guilty before a judge or jury returns a verdict, otherwise you can be found guilty of contempt. Neither should you report any information obtained outside the trial itself which might influence a jury to suppose the accused is guilty, such as mentioning previous convictions.

In writing or broadcasting about people you must take care that accusations are supported by evidence or are at least reasonable, otherwise you can be sued for defamation on the grounds that the accused person is presumed to be innocent of the bad things you said about them. To use the defence of truth in a defamation case against you, it is your responsibility as a journalist to prove what you wrote was true; the defendant does not have to prove their innocence even though they are the plaintiff in the case.

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4. Case law

Judges play an active part in deciding law. Their judgments are binding on lower courts unless overridden by specific legislation. This is not true in civil code systems where the interpretations of judges is either given less weight or banned altogether, as in the Napoleonic Code - one of the earliest and most common of the modern civil code systems.

One of the features of common law systems is that courts not only have to determine the facts in a case but they also have to argue all the relevant legal precedents set by previous courts making decisions on similar matters. Both the prosecution and the defence lawyers present not only evidence of events but also evidence about how these previous cases were resolved. Judges and juries too are expected to consider not only the facts of the current case but also the arguments about previous cases.

For this reason, judgments in common law cases are often long and involved. This is so that future lawyers, juries and judges can see how a verdict was reached when considering their own cases. Traditionally these lengthy and intricate judgments were printed annually in a court's law reports, but increasingly they are being made available on the Internet, for example through the World Legal Information Institute.

Because judges at all levels in a country's legal system are making decisions about laws every day, the common law system is very adaptable to change. It can be quickly updated to meet new circumstances, often before politicians get round to formulating and passing new statutes. For example, in Australia for more than 200 years the law acted as if the original Aboriginal inhabitants had no prior legal claim to land. This was the concept of terra nullius ("land belonging to no-one"), that there were no legal titles to land in Australia before white settlement. In its celebrated Mabo judgment of 1992, the High Court of Australia overturned the concept of terra nullius and said that Aboriginal people did have a common law legal title to land they had a long, strong and continuous connection to under customary law. Later High Court judgments such as Wik further clarified the position by deciding that pastoral rights of settler-farmers could co-exist with native title and in some cases supercede them. Sadly, Eddie Mabo, one of three Meriam men who originally took the case to court, died of cancer five months before the judgment was made. You can read the whole Mabo judgment of the High Court here or a summary of the case and its consequences by Chief Justice Sir Gerard Brennan here.

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5. Co-exists with other laws

Following on from 4. above, judges interpret the constitution and statutes (i.e. parliament-made laws) where they are unclear. Of course, the constitution of a country is the paramount law and judges are not able to change its basic provisions. But even with the constitution they can interpret how it is applied in real life. In strong democracies, judges have a role in interpreting laws as they interact with each other. For example, a court may decide that legislation passed by a parliament is unlawful because it clashes with more important constitutional rights. Such cases are usually eventually determined by the highest court in the nation or state, such as a high court or supreme court. If these courts decide a statute is unconstitutional, parliament will normally amend it, otherwise it cannot be successfully applied.

The ability for judges to interpret statute law against a background of common law means legislation does not have to state every possible circumstance. It can state the general principles and set limits (for example on the maximum amount an offender can be fined) and leave the rest for the courts to determine in line with other statute laws and common law precedents. Opponents of common law say this gives too much power to judges, whereas its supporters see this ability to interpret legal statutes in real life situations as a strength. As in many things to do with common law - or any law for that matter - the quality of judges and others people in the legal system such as lawyers and the police determine how successfully the system will work.

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