Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence

Abstract

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An international review and normative examination of the collateral consequences of criminal record disclosures for domestic abuse

“…A second line of argument claims that practices of disclosure and publicity fail to serve the purposes to which they are usually put – namely just punishment (Hadjimatheou, 2016; Lippke, 2018) and public protection (Henley, 2019) – and are therefore difficult to justify on those grounds. Finally, a third layer of critique questions the compatibility of criminal record disclosure with respect for human rights, specifically rights to privacy (Grace, 2014; Larrauri, 2014b), rehabilitation (Hoskins, 2019) and the presumption of innocence (Campbell, 2013; Larrauri, 2014a; Purshouse, 2018). To what extent can these insights help us to understand the normative implications of DADS?…”

“…On this account, disclosures of non-conviction data under DADS would certainly violate the presumption of innocence and be objectionable on that ground, because in the words of Grace (2021: 144) they ‘carry the weight of official confirmation of risk’. Against this, Campbell has argued convincingly that the stigmatisation included in an official declaration of riskiness or suspicion is qualitatively different from that of an official declaration of criminal guilt (Campbell, 2013). The fact that DADS only involve a declaration of risk and that disclosure is made to a single individual alone means that both the severity and scope of stigmatisation are significantly reduced compared with an official declaration of guilt.…”

Seeking Compatibility in Preventing Crime with Artificial Intelligence and Ensuring a Fair Trial

“…as this approach is well established, this article argues that it is instead the addition of AI to predictive policing that has made its use much more efficient and arguably less compatible with existing legal procedures. 9 With AI it is possible to correlate a multitude of otherwise unrelated factors that are not easily comparable or reconcilable. Such an algorithm is notable in its ability to perform quick calculations in real-time, but also to quantify and compare seemingly unrelated data points.…”

“…Were the Court to address such an expanded use of acquitted individuals' data to form pre-emptive suspicion, it may reach an even more expanded reading of the presumption. 67 The Court's strong approach to applying the presumption to postacquittal treatment is notable for the case of predictive policing. Predictive analyses rely heavily on crime data that include and prioritize arrest records and non-custodial stops.…”

How far is too far? Theorising non-conviction-based asset forfeiture

“…26To an already problematic situation we could include here additional considerations of personal reputation and ‘good name’. See Campbell (2013b, pp. 705–706), where it is suggested that: ‘while the ostensible rationale [of civil recovery] is to recoup unlawfully acquired assets, and while these orders are directed at the property rather than the person, recovery also incorporates a substantial stigma and incorporates the blame that distinguishes criminal from civil measures, with the former connoting “should not do”’ (references omitted).…”