Sensational crimes, the presumption of innocence, and public statements of guilt

In atrocity, terrorist, or sensational crimes the accused’s right to the presumption of innocence can conflict with other people’s right to freedom of expression. In addition to being a legal presumption, the presumption of innocence includes a non-procedural aspect, which requires public officials to refrain from making public out-of-court statements that give the impression that an accused person is guilty before the end of trial. This restricts the freedom of expression of those who wish to give a public statement regarding the alleged crime. To deal with this conflict of rights, the international and internationalised criminal courts and regional human rights courts tend to hold that a public statement regarding a suspect’s guilt will not violate the presumption of innocence if a more innocuous meaning can be attributed to the statement. This case law however, raises questions of where the boundary is between freedom of expression and the right to be presumed innocent, as there appears to be a lack of consistency. In atrocity, terrorist, or other sensational crimes with a lot of media coverage, public officials often make statements that imply that a particular suspect is responsible for the crime. Clear language implying (or stating) that the accused is guilty is often not held to violate the presumption of innocence, while less clear language is sometimes held to violate the presumption. This paper will examine the limits on the presumption of innocence in light of public official’s freedom of expression in extreme or sensational cases. It will discuss how this type of statement limits the presumption of innocence and how limited freedom of expression is by the presumption. By examining the case law, the paper will try to develop a set of rules regarding what can be said about someone’s guilt before the end of trial.