15 November 2012


'Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence' (Edinburgh School of Law Research Paper No. 2012/25) by Liz Campbell 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 also 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.
Campbell concludes -
Labels in the criminal justice system have a declaratory function; offences thus need to be named and classified appropriately. Similar caution and fairness is imperative in the official classification and naming of persons based on their actions, given the meaning it may express to fellow citizens. Such labels or measures may be desirable: there is a weighty consequentialist argument for stigmatising certain behaviours on the basis that this is beneficial to society in terms of deterrence and retribution. Nevertheless, ascribing the label of ‘criminal’ risks breaching the presumption of innocence and its underlying values, even when this occurs outside of the criminal process. 
Moving from the traditional dichotomous conceptions of guilt and innocence, this paper draws on an understanding of the criminal justice system as involving a continuum of culpability and associated labelling. Using the presumption as an interpretative device allows us to get to the core of what is troubling about certain State practices. Beyond this, this paper presented an expanded interpretation of the presumption to take in persons who have not been charged, drawing on both its epistemic purposes and broader significance in terms of civic trust. 
Building on this understanding, the paper sought to determine whether certain expressions of suspicion through official labels or declarations of guilt engage or breach the presumption of innocence. At first blush, it might seem that attaching the label of arrestee, suspect, or accused speaks to the State’s suspicion of a person’s culpability or likelihood to offend, and thus distinguishes them from ‘truly’ innocent people who have never come to the attention of the police. By devising a typology focusing on stigma, state intention and public dissemination, this paper concludes that while the unfortunate effect of some measures by the State may stigmatise a person, this is not in breach of the presumption of innocence. Rather, the presumption is compromised only where the declaration involves a public expression of censure on the balance of probabilities, given that such State action usurps the role of the criminal courts and evades the associated protections through the creation of a ‘shadow criminal law’