Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence
| Published date | 01 July 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12030 |
| Author | Liz Campbell |
| Date | 01 July 2013 |
Criminal Labels, the European Convention on Human
Rights and the Presumption of Innocence
Liz Campbell*
This article explores whether the presumption of innocence is compromised by state declarations
that a person is other than innocent, but which are neither predicated on nor equivalent to a
criminal conviction. The task ultimately is threefold: in a descriptive sense, to establish the existing
parameters of the presumption, in particular tracing its incremental expansion by the European
Court of Human Rights; secondly, to present a normative argument as to what I believe the
presumption should further entail, drawing on its recent doctrinal extension but moving beyond
this in certain respects; and then finally to ascertain whether any labels or declarations by the state
either before or absent a finding of criminal liability are problematic as regards the presumption
of innocence as I propose it should be construed, and what ought to be done about this.
INTRODUCTION
The conventional, contemporary understanding of the presumption of innocence
as a principle of criminal law and procedure is that it embodies two elements, firstly
prescribing that the state must bear the burden of proof in a criminal trial and
secondly requiring that the guilt of the individual as regards a particular crime be
proven beyond reasonable doubt. Such a construction generally is uncontroversial
in common law legal doctrine and scholarship. Now, jurisprudence of the
European Court of Human Rights (ECtHR) has extended this central protective
notion to preclude expressions of suspicion by the courts after acquittal and also
declarations of guilt by agents of the state prior to trial. Moreover, a brief reference
by the ECtHR seems to intimate that the presumption of innocence may go
further still, and perhaps may apply to other stigmatising actions by the state.1
Various existing state practices, such as criminal accusation and prosecution,
inclusion on ‘watch lists’, and publication of details of civil preventative orders,
may be hard to reconcile with an expansive version of the presumption of
innocence, on the basis that they involve the treatment as other than innocent of
persons who have not been found to be criminally culpable. While it may at
first appear that these engage the presumption of innocence as defined in the
European context, according to Article 6(2) of the European Convention on
Human Rights (ECHR) the presumption cannot apply unless and until the
*Dr Liz Campbell, School of Law, University of Edinburgh. Thanks to Kimberley Ferzan, Susan
Rozelle and Roger Shine for providing valuable comments on previous drafts of this paper; to the
participants at Fraying the Golden Thread: The Presumption of Innocence in Contemporary Criminal Law,
University of Aberdeen, February 2012 and the Law and Society Conference, Hawaii, June 2012; and to
numerous colleagues at the University of Edinburgh, in particular Gerry Maher, Andrew Cornford,
Neil Walker, Daithí Mac Síthigh, Niamh Nic Shuibhne and Graeme Laurie.
1S and Marper vUnited Kingdom (2009) 48 EHRR 50 at [119].
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(4) MLR 681–707
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
individual is charged, thereby excluding some actions from its scope.2None-
theless, intuitively it seems that certain official actions and statements do not
comport with the ethos underpinning the presumption, which includes protect-
ing the individual against the coercive power of the state.3
This article begins in the next section by examining the steady extension of
the reach of the presumption of innocence in the context of ECHR jurispru-
dence. Though we all may agree on the conventional core of the presumption
and the reasons for its protection in the context of criminal procedure, in the
third section I posit and defend a new and broader reading premised on
protecting the individual from state censure. Even under the wide-ranging
European approach, the presumption does not accrue until an individual is
charged with an offence; I propose an extension so as to protect individuals who
are subject to state labelling but who have not been charged.
While there is a rich literature on official treatment of the individual that
ostensibly breaches the presumption of innocence, such as pre-trial detention,4
that is not the concern of this paper. My focus is narrower: here the emphasis is
on official, censuring statements that replace rather than precede the criminal trial
or accompany the ‘hard treatment’ of conviction. Instead of looking at treatment
in terms of behaviour towards or consequences for the individual, this paper
looks at what may be called ‘non-material’5matters, namely public declarations
that induce belief in guilt, as a substitute for a criminal conviction.6Though the
state’s labels may be accompanied or reinforced later by coercive acts or conse-
quences, here I seek to consider the labels only.
Then, in the fourth section, numerous official actions that declare people to
be other than innocent will be identified. By teasing out the intent behind and
effects of these measures this paper seeks to construct a typology and thereby
ascertain which, if any, of these are problematic as regards the extended
presumption of innocence I propose. I use domestic case law to flesh out
jurisprudentially the bones of a normative argument that the presumption is
applicable in the context of certain state labels short of criminal trial or convic-
tion. Ultimately, if accepted, this requires a reconsideration of the necessary
standard of proof in certain instances.
THE PRESUMPTION OF INNOCENCE AND ITS
EUROPEAN EXPANSION
According to the oft-quoted dictum in Woolmington vDPP, the presumption of
innocence requires the prosecution to bear the burden of proof in the criminal
2 Article 6(2) provides that ‘Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law’.
3 See J. Jackson and S. Summers, The Internationalisation of Criminal Evidence Beyond the Common Law
and Civil Law Traditions (Cambridge: CUP, 2012) 199.
4 See, for example, S. Baradaran, ‘Restoring the Presumption of Innocence’ (2011) 72 Ohio State
Law Journal 723.
5 M. Redmayne, ‘Standards of Proof in Civil Litigation’ (1999) 62 MLR 167, 188.
6 In fact, the treatment of pre-trial detainees may be problematic in terms of the presumption
regardless of whether the public is aware of this practice, but this is beyond the scope of this paper.
Criminal Labels, Human Rights and the Presumption of Innocence
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
682 (2013) 76(4) MLR 681–707
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