The presumption of innocence is one of the basic principles of
justice. It is summed up in article 6.2 of the European Convention of Human Rights: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The principle states that the authorities must prove the guilt of a criminal defendant.
It is not for him to prove his innocence.
The burden of proof rests with the prosecution.
The principle can be traced back to Roman times. The 6th Century Digest of Justinian states: Ei incumbit probatio qui dicit, non qui negat - “Proof lies on him who asserts, not on him who denies”.
The development of the presumption of innocence in the modern era took place primarily in the common law jurisdictions of England and the United States. From there it has taken root in international human rights law.
The presumption of innocence, as a general principle, extends beyond the confines of the courts of law. The media should also respect a person’s right to their good name, and their right to be presumed innocent until they are found guilty by due process of law.
However, some argue that Catholic priests are nowadays effectively denied the presumption of innocence, especially where an accusation of sexual abuse is made against them.
The Association of Catholic Priests is critical of the Irish bishops’ practise of making a public statement about a priest when an abuse allegation is made: “this episcopal practice seems to make the preservation of the presumption of innocence of the accused priest very difficult to maintain, in spite of the official Church re-assurance that that principle stands.”
Once such a statement is made, the media often report the allegations, which can make life very difficult for the priest concerned. It may take years before an innocent priest is cleared of allegations.
If reporting on criminal proceedings, the media should carefully state that anyone on trial is ‘accused’ and that what they are accused of is ‘alleged’. Indeed, widespread coverage suggesting the guilt of a defendant, may enable them to argue that they cannot get a fair trial.
In the past, publication was done only by professional media organisations.
Nowadays, anybody with internet access can instantly publish material to the entire world.
In just a few hours, online rumours can become repeated so often online that they become treated as fact.
Last year, the Arkansas Supreme Court reversed a murder conviction because a juror who had used their mobile phone to tweet about the trial during jury deliberations.
In Texas, a juror was found guilty of contempt of court when he tried to ‘friend’ the defendant on Facebook.
Similar concerns arose regarding the Australian trial of the suspect for Irish murder victim Jill Meagher.
A vast amount of prejudicial online commentary about the accused prompted fears that the defendant would not get a fair trial.
Victorian police pleaded with people not to post such comments, saying, “it is inappropriate to post speculation or comments about matters before the courts”.
The internet can act as an uncensored global rumour mill.
Its role in diminishing the presumption of innocence cannot be ignored - either by the courts, or by anyone involved in the publication of allegations.
Even ‘trial by media’ is far preferable to ‘trial by social media’.
In the internet age the publication of mere allegations are more likely than ever to injure a person’s human right to be presumed innocent.