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Publication

Innocent until proven guilty?

The presentation of suspects in criminal proceedings

June 3, 2019 - Presumption of innocence
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Executive summary

The presumption of innocence has been described as a “golden thread” running through criminal law. It is a norm of customary international law and is protected by numerous international treaties and in national legal systems. The presumption of innocence is crucial to ensuring a fair trial in individual cases, to protecting the integrity of the justice system, and to respecting the human dignity of people who are accused of committing crimes. Despite this, in practice, violations of this important legal principle are common. Public appetite for sensation, real-crime, real-time stories places enormous pressure on public authorities and the media to violate the presumption of innocence. The presumption of innocence also has to be balanced against other aspects of the right to a fair trial (such as the principle of open justice) and other human rights (such as free speech).

This report seeks to identify key threats (and possible solutions) to violations of the presumption of innocence resulting from statements made by public authorities about ongoing proceedings; the content and tone of press coverage; and the use of restraints in courtrooms or in public settings. It draws on a wealth of data: (a) a global survey of law and practice on the presentation of suspects; (b) a sociological study on the impact of images of arrest and different measures of restraint on public perceptions of guilt; (c) content analysis of crime-related news stories in newspapers, online press and broadcast television news programmes in seven countries to assess compliance with the presumption of innocence; and (d) comparative research on the presentation of suspects before the courts in five countries.

Prejudicial statements

Although it is a clear violation of the presumption of innocence for a public authority to make public statements implying the guilt of a suspect, such statements are a common occurrence in many countries across the globe (including in Europe). This is a particular problem where there is considerable public interest due to the nature of the offence or identity of the suspect. Furthermore, in many countries there is systemic press reliance on leaks of confidential information from public authorities, which are exceedingly hard to investigate and sanction.

a. Clear legal regimes are required to prohibit public officials making public statements that imply the guilt of a suspect. Crucially, violations need to be investigated and enforced by impartial bodies, regardless of the seniority of the official in question.

b. Journalists should not be required to reveal their sources but efforts, detailed in this report, should be taken to address the issue of leaks to the press and to sanction violations.

c. Where public officials make public statements implying the guilt of a suspect or leak information to the press, effective redress must be provided.

“Television and newspapers are loaded with interviews of police officers who give journalists copies of arrest warrants and pictures. Police push their agenda with videos they took for the case file – giving the material to TV channels and websites.” – Italian lawyer

Press coverage

Media reporting on crime-related cases frequently violates the presumption of innocence. Suspects are commonly presented as though they are guilty and reporting is often unbalanced against the suspect. Some groups of marginalised suspects are more likely to bear the brunt of these problems. This problem is not, however, easily addressed due to the important principle of media freedom, the growing range of media outlets and social media.

a. Training should be offered to journalists on the presumption of innocence to help them understand this important but complex issue and the impact their reporting can have on the fairness of trials and the dignity of suspects.

b. It should be prohibited for the press to take and publish photographs of people in restraints.

c. The codes of conduct adopted by professional associations of journalists should contain a specific section on covering criminal proceedings.

d. Where reporting is found to violate the presumption of innocence, appropriate measures should be taken to rectify this.

“The police officers arrested my client at 5 a.m. in the morning. She opened the door in her nightwear, dishevelled. When she opened the door, the press were behind the police. It is to be noted that she is an elderly woman. After the arrest, all newspaper and TV channels broadcast pictures and videos of her and the arrest.” – Croatian defence lawyer

Presentation of suspects in court and in public

In many countries it is common for suspects to be paraded in physical restraints before the public and media at the time of their arrest and during their transfer to and from court. In courts, too, it is common for suspects to be restrained (even placed in cages or glass boxes) when there is no justification for this. This can cause irreversible damage to a suspect’s reputation and can also affect judgments about a person’s guilt or innocence. Even robust rules governing how suspects are presented in public and in court do not always prove effective in practice, including because of the huge public appetite for these images.

a. Robust legal regimes (and practical infrastructure, such as court layouts) should be put in place to limit the use of restraints and the suspect’s exposure to the public and press at the time of arrest and during transport to and from court.

b. Any form of restraint in court should be strictly limited and should only be used where a case-specific decision has been made by the court that this is required. Relevant information on circumstances relevant to the necessity of restraints should be provided to judges well in advance of hearings. Cages or glass boxes should be removed from all courtrooms.

c. Training of law enforcement officials is needed to change the culture in relation to the use of restraining measures and special protections against the use of restraints should be put in place for vulnerable groups of suspects (children, elderly people, pregnant women).

“Member States shall take appropriate measures to ensure that suspects and accused persons are not presented as being guilty, in court or in public, through the use of measures of physical restraint.” – EU Presumption of Innocence Directive

 

Watch our short film below where we share the stories of Nahuel, János and Robert to show what can happen when the right to be presumed innocent isn't respected.

Conclusions and recommendations

The presumption of innocence is protected as a matter of law in a wealth of human rights instruments and in national legal systems. It is crucial to ensuring a fair trial in individual cases, to protecting the integrity of the justice system, and to protecting the human dignity of people who are accused of committing crimes. It is clear that the presumption of innocence is affected by how suspects are presented in public, by statements made in public by public authorities about ongoing proceedings, by the content and tone of press coverage, and by the use of restraints in courtrooms or in public settings.

There is huge appetite for sensational, real-crime, real-time stories. This creates pressure for public authorities and the media to violate the presumption of innocence. Even without this, it would be challenging to implement these aspects of the presumption of innocence. For example, bright-line rules are hard to define: sometimes it will be necessary to arrest a person in a public place (even if that exposes them to press scrutiny) or to restrain them in court (even if that could affect how they are perceived by the decision-maker). Protecting the presumption of innocence also has to be balanced against other aspects of the right to a fair trial (such as the principle of open justice) and other human rights (such as free speech).

Recommendations:

a. The EU Directive is an important first step in making the presumption of innocence a reality in Europe but the EU will have to invest considerable time and political will to ensure its effective implementation. Member States’ courts will also have to refer questions to the CJEU where it is unclear what EU law requires.

b. Meaningful reform will require profound changes of law, practice and culture. Robust laws are important, but a formalistic legal approach will not suffice. Long-term engagement of law enforcement, legal professionals (including judges, prosecutors and the defence) and the media will be crucial, alongside broader public education.

Prejudicial statements

It is a clear violation of the presumption of innocence for a public authority to make public statements implying the guilt of a suspect. This can exert inappropriate pressure on the decision-maker, undermine trust in the justice system and irretrievably damage a suspect’s reputation. In practice, however, such statements are a common occurrence in many countries across the globe (including in Europe), particular where there is considerable public interest due to the nature of the offence or identity of the suspect.

The important principle that media should be protected from being required to reveal their sources, facilitates the systemic press reliance on leaks from public authorities. These can take various forms: the press being tipped off about a high-profile arrest, the disclosure of the identity of a suspect or leaking of evidence. It also results in the routine use of quotations from the press from “anonymous sources close to the investigation”. Such leaks are exceedingly hard to investigate and sanction, and can create significant bias in press reporting.

Recommendations:

a. Clear legal regimes are required to prohibit public officials making public statements implying the guilt of a suspect. Crucially, violations need to be investigated and enforced by impartial bodies, regardless of the seniority of the official in question.

b. Journalists should not be required to reveal their sources but efforts should still be taken to address the issue of leaks to the press (and to sanction violations), for example:

  • Information (such as the time of a high-profile arrest) and evidence should be shared with a restricted group of appropriately-trained people to minimise the risk of leaks.
  • Access to and sharing of restricted information should be monitored where possible (i.e. through technology which records who accesses electronic records); and
  • Leaks should be robustly investigated by an impartial body

c. Where it is found that public officials have made public statements implying the guilt of a suspect, redress must be provided. In particularly severe cases, this threatens the chance of the suspect receiving a fair trial, or undermines the integrity of the justice system, it may be appropriate to drop criminal charges or quash a conviction. Other remedies might include the payment of compensation and/or a public apology to victims.

Press coverage

There are considerable differences in how countries’ legal systems approach the question of how open ongoing criminal proceedings (or aspects of them) should be: some apply high-levels of secrecy (emphasising the importance of securing the fairness of proceedings and protecting the dignity of the suspect); others emphasise the importance of open justice. It is, however, clear that even where countries seek to impose secrecy, this frequently fails where there is considerable public interest in the story.

Media reporting on crime-related cases frequently violates the presumption of innocence. Suspects are commonly presented as though they are guilty (particularly in attention-grabbing headlines) and reporting is often unbalanced against the suspect. Some groups of suspects (migrants, refugees and/or Muslim) are more likely to bear the brunt of these problems. Although the picture certainly varies between countries and between sections of the press, there is clearly a huge problem. It is not, however, one that is easily addressed (at least, not by legal regulation) due to the important principle of media freedom, and the growing range of media outlets and the democratisation of the news through social media.

Recommendations:

a. Training should be offered to journalists on the presumption of innocence to help them understand this important but complex issue and the impact their reporting can have. Training should be based on the personal participation of former defendants who can share their personal experience on how the coverage of their trial impacted their lives during and after the proceeding.

b. Only the journalists who have undergone training on these issues should be allowed to cover criminal proceedings (c.f. the mandatory training for legal aid lawyers).

c. It would also be valuable to monitor press coverage (for example, of high-profile crime-related stories) and to use this to expose (and respond) in a timely fashion to reporting that violates the presumption of innocence.

d. The adoption of a blanket prohibition on taking photos of people in restraints.

e. The codes of conduct adopted by professional associations of journalists should contain a specific section on covering criminal proceedings.

f. Where reporting is found to violate the presumption of innocence, appropriate measures should be taken to rectify this. In some extreme cases, for example involving statements by senior political figures or authorities directly involved in the criminal proceedings, where this could fundamentally threaten the integrity of the justice system, and the chance of a fair trial, it may be appropriate to drop criminal charges or quash a conviction. Other remedies might include the payment of compensation, publishing corrections or making public apologies.

Presentation in court and in public

Research has shown that if people see an image of someone being arrested they are likely to think the person is guilty; and that the more severe the restraint used, the more likely this is. Despite this (perhaps because of it) in many countries it is common for suspects to be paraded before the media at the time of their arrest or during transfers to and from court. There is no doubt about the press appetite for these images. Neither is there any doubt about how these humiliating images can threaten fair trials or cause irreversible damage to a suspects’ ability to recover after the ordeal of being prosecuted (even if they are cleared of any wrongdoing).

The perp walk has nevertheless become ubiquitous in some countries, most famously the US. Many countries in Europe have robust rules governing how suspects are presented in court (including the use of restraints and how a person is transported to and from court) including to protect the presumption of innocence. These do not, however, always provide effective protections in practice. Countries have, however, developed good practices in this area, for example, by ensuring that suspects are spared the glare of publicity when they enter and leave court (often in restraints) by providing discrete routes where they cannot be seen.

It should be easier to protect the presumption of innocence in the more controlled setting of the courtroom; to ensure that the suspect is not presented in a way that makes them appear guilty. In practice, however, in some countries it is common for suspects to be restrained in court when there is no objective justification for this. Furthermore, many courts are simply set up in a way that makes all suspects look as though they are dangerous. The use of secure docks is common, despite research that shows the impact the use of docks has on whether a person is convicted.

Recommendations:

a. Robust legal regimes should be put in place regarding how suspects are presented in public. These should limit the use of restraints and limit the suspect’s exposure to the public and press (at the time of arrest, where possible, and during transport to and from the court). Violations need to be effectively enforced with redress provided to victims.

b. The use of any form of restraint in court should be strictly limited and should only be made where a case-specific decision has been made by the court that this is required. The dock (whether cages or glass boxes) should be removed from all courtrooms.

c. The creation of court infrastructure where possible to make sure that defendants are not exposed to public attention when they arrive and leave in restraints, and that this should be a requirement whenever a court building is constructed or renovated.

d. Training of law enforcement officials in order to change the culture in relation to the use of restraining measures.

e. Special regulation for vulnerable groups of suspects (children, elderly people, pregnant women) to make it the default that they are not restrained only if absolutely necessary and inevitable.

f. Other circumstances reducing the likelihood of the need for the application of means of restraint (the minor nature of the offence, voluntary surrender) should also be identified and it should be prescribed that if these prevail, restraints should be applied only exceptionally if other circumstances make it absolutely necessary and inevitable.

g. Relevant information on circumstances that may substantiate or weaken the necessity of using means of restraint shall be provided to judges well in advance of hearings so that they could make a sufficiently informed and well-grounded decision on whether means of restraint are necessary to be applied in the courtroom. The information may be provided through a database for assessing risks, which is accessible to both the escorting authorities and the courts, and can be reviewed and challenged by the concerned detainee.

 

Read the full report 'Innocent until proven guilty? The presentation of suspects in criminal proceedings' here.

Read a summary of the conclusions and recommendations here.

 

The report was produced as part of the project “The Importance of Appearances: How Suspects and Accused Persons are Presented in the Courtroom, in Public and in the Media”, coordinated by the Hungarian Helsinki Committee with partners Aditus Foundation (Malta), Fair Trials, Human Right House, Zagreb (Croatia), Mérték (Hungary), Rights International Spain, and the University of Vienna.

The project was funded by the European Union’s Justice Programme (2014–2020). The content of this publication represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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