#Whataboutthepresumptionofinnocence?

metoo-2859980_960_720Leonie van Lent

The #metoo campaign has once again shown what social media are capable of: stirring a worldwide debate on important issues for people and society and questioning power structures that are not or cannot be put on trial in the same way in traditional media, politics and courts. But also: destroying reputations, careers and relationships, creating large-scale gossip and speculation and forcing people to their knees who know that there is no chance to defend themselves against the storm unleashed by this puny but unassailable mark.

At the same time, human rights treaties not only state that the human body is inviolable, but also stipulate innocence until proved guilty. But what good does this? People are groped involuntary on a massive scale and at the same time people are subjected to a rhetoric of naming and shaming without due process. In this blog, I argue that the presumption of innocence has been neglected wrongfully by lawyers and that now is the time to let it live up to its expectations, also with regard to the media.

In his blog “We staan erbij en we kijken ernaar”,featured in the NJB, Maurist Barendrecht poses pressing questions on the position of the lawyer in and in regard to the #metoo-discussion. His questions on dealing with public accusations and legal protection for reputational violations target the legal profession directly: they indicate the neglect of an important doctrine concerning social relations which can cause great damage.

The presumption of innocence is a well-known and widely supported legal idea and a legal principle of the highest rank, however lawyers cannot seem to agree on what it means or should mean, at least in so far as it concerns the meaning beyond the strict framework of the criminal proceedings. Legal literature shows that there is a broad consensus on its relationship with the law of evidence: a person can only be convicted and punished on the basis of the law of evidence and in cases of doubt they should be acquitted (in dubio pro reo); as such the presumption of innocence helps to prevent the conviction of the innocent. Historically, the notion that only a conviction provides a basis for punishment has played an important role in the abolition of pre-trial torture and the establishment of safeguards concerning pre-trial detention. Although the presumption of innocence has limited practical significance for pre-trial detention, and its applicability in this field is even rejected by some authors, legal opinion generally holds that the presumption of innocence regulates the relationship between government and citizens, in the sense that it protects the citizen from arbitrary and overly invasive punitive governmental action (see for example Thomas Weigend and Andrew Ashworth).

These views are limited to the domain of criminal procedure and thus focus onthe investigative, prosecutorial and trial apparatus of the government. Does that mean the presumption of innocence does not concern citizens and the media? The answer is no; the presumption of innocence does have significance outside this domain and it should be associated with (further) consequences in (case) law . The important thing about a ‘vague’ principle like the presumption of innocence is precisely that its normative power is not restricted to the rules of criminal procedure in which it is expressed. This can be read as legally ‘soft’ , but should be understood as being open to social functions and developments: it goes without saying that the presumption of innocence is one of the foundations of the criminal procedure. These foundations are reflections of social values. Their meaning is not fixed, but is the result of normative choices that are ideally made on the basis of an overarching normative concept.
The presumption of innocence is the recognition of the disastrous consequences of wrongful accusation and punishment for people’s lives. That is why the presumption of innocence can also be recognized in the demands that apply in order to make someone the subject of a criminal investigation; what is required to break through the normal interpersonal relationships in which we approach each other as ‘innocent’? The essence of the presumption of innocence in the criminal procedure lies in offering a counterweight and delaying the movements with which the criminal process proceeds. Therefore it warns us: watch out, the suspicion can be wrong or unfounded. Thus the presumption of innocence at the same time serves the authority of the courts : only after a court decision can we assume guilt and only then can someone be punished – everything that precedes this is provisional.

Paradoxically, the presumption of innocence has significance outside the criminal process because of its reference to the criminal judge and his tool kit. Within the criminal justice system, but also in the relationship between criminal justice and society, the presumption of innocence is aimed at ‘leaving open’ the question of guilt. In a series of cases the ECtHR has ruled that the presumption of innocence is violated if authorities publicly comment on the guilt of a suspect. In cases of contact with the media, the ECtHR assesses the language used by the police, the Public Prosecution Service, investigating judges, as well as administrative authorities on the basis of whether the public has been encouraged to believe the suspect guilty and the assessment by the court has been prejudiced. While some authors regard this case law as more or less alien to the presumption of innocence, it is precisely this norm which forms the first substantive provision (article 4) in the EU Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence. This provision is followed by Article 5, which stipulates that Member States must take measures to prevent suspects from being presented as guilty by implementing in court or in public measures of physical restraint. Remarkably, the Directive puts the prevention of premature judgments of a suspected person’s guilt held by the public first.

Another important development is that for the first time, the presumption of innocence will find its way into Dutch statutory law through Article 1.1.1.3 of the draft proposal book 1 of the new Code of Criminal Procedure. The Explanatory Memorandum states that a change of the current meaning of the presumption of innocence is not intended. Yet, this meager substantive position is incompatible with the developments reflected in the Directive and is also untenable in the light of the ‘appropriate measures’ required by the Directive (Article 19). Within Dutch criminal procedure, any violation of the presumption of innocence of the accused spurs a limited response: the same as in cases of excessive publicity for which the Public Prosecution Service cannot be blamed, a sentence reduction is the usual remedy. The same goes for inadmissible disclosure of camera images (which is wrongly assessed as only being a violation of privacy rights rather than also being considered in the light of the presumption of innocence). Unlike legal systems with juries or other forms of lay participation that ensue rules to counteract the influence of the media, the assumption in the Netherlands is still that the professional judge is not influenced by this.

While research makes clear that this assumption does not apply in general and judges themselves do recognize this, there is a peculiar situation in the Dutch criminal process which has systematically kept all forms ‘private’ influence (lay participation, private prosecution) at bay in fear of importing irrationality, emotion and revenge. At the same time, hardly any attention is paid to preventing and legally responding to unwanted external influences of media coverage. Thus, we not only look away from the risks for judicial open-mindedness, we also hand over the courts and judicial decisions to a public opinion that is no longer open to them.

The presumption of innocence is the legal norm in which the open-mindedness of decisions in criminal proceedings, the authority of the judge and judgement and people confronted with accusations, must find protection – which is currently not the case. This diagnosis leads us back to the questions of Barendrecht.

The case law on article 10 of the ECHR (the right to freedom of expression) illustrates that the ECtHR finds that journalists and other citizens who publicly express themselves about others must operate within the limits of the presumption of innocence and that freedom of expression can be restricted on the basis of protection of the presumption of innocence (see, for example, Constantinescu v. Romania, Worm v. Austria, Eerikainen v. Finland, Tourancheau, and July v. France, Bédat t. Zwitserland) From this case law in combination with the ‘appropriate measures’ required by the Directive, it is a small step to derive positive obligations from the presumption of innocence (see, for example, Peter C. Schouten in Trial by media, p.87): obligations for the government to protect the citizen from infringement of the presumption of innocence by other citizens, in and through the media. Not only are stronger restrictions necessary in the light of the Strasburg principle that the public has a general right to information on criminalcases); but also in the current media landscape professional ethics of the journalist can no longer be regarded as a basic assumption. It is therefore the obvious normative choice to undergo a conversion towards a presumption that protects people’s reputations and the criminal process alike. We must abandon the position that the (regular and social) media are fundamentally and practically inviolable and that therefore only self-regulation remains. Thanks to the ECtHR case law , we have an overview of the various schemes that different countries around us use; after #metoo it is up to lawyers to take the business of setting standards seriously.