"Immigration Offenders", Home Office Spin and the ECHR

Richard A. Edwards and Dr. Noelle Quenivet. ILHRU. UWE Bristol.

It is not often that this blog finds itself in agreement with Nigel Farage. But Mr Farage is right to label the recent high profile raids and associated activity by Immigration Officers as ‘un-British’. Just as un-British is the loose language used by the Home Office when publicizing its activities. Both the Home Office webpages and Twitter account boast of how ‘immigration offenders’ have been arrested. Indeed, the Home Office seems to have gone as far as creating a ‘hash-tag’ in Twitter called #immigrationoffenders. Yet none of those arrested are offenders. They are suspects not offenders until a court convicts them of an offence. And spinning it as the arrest of offenders is unlawful. 

Indeed, Article 6.2 of the ECHR provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ This is but an articulation of the ‘golden thread’ running through English law. The European Court has held that ‘there is a fundamental distinction to be made between a statement that someone is merely suspected of having committed a crime and a clear judicial declaration, in the absence of a final conviction, that the individual has committed the crime in question.’ (Vulakh v Russia [2012] ECHR 33468/03, para 36) The duty not to prejudge guilty most obviously applies to courts. However, the European Court has long held that it applies to the executive and its servants. In Allenet de Ribemont v France [1995] ECHR 15175/89 the applicant complained that the presumption of innocence had been infringed when the Minister of Interior and two senior police officers declared publicly that they believed the applicant guilty of aiding and abetting a murder before he had even been charged. The European Court held that ‘the presumption of innocence may be infringed not only by a judge or court but also by other public authorities’ (para 36) and that consequently the prejudicial remarks of the minister and police chief infringed the applicant’s presumption of innocence. Thus the executive, at all levels, needs to be careful when referring to suspects. And this duty of care will extend beyond traditional media outlets such as the press conference and press release to  new media such as Twitter.

Nonetheless, Article 6.2 does not prevent the publicizing of police and other law enforcement operations. But crucially the presumption of innocence ‘requires that they do so with the utmost discretion and with a reserve that respects the presumption of innocence.’ Ürfi Çetinkaya v. Turkey [2013] ECHR 19866/04, para 141 (unofficial translation) The choice of words and the context in which they are made are crucial. Thus in Ürfi Çetinkaya the police issued, amongst other things, a press release that described the applicant as an ‘international drug trafficker’ even though he had yet to be convicted for any such offence. The European Court concluded that ‘the use without shades or qualification of the term “international drug trafficker” with respect to the applicant was likely to lead the public to conclude he was guilty and would prejudge the assessment of the facts by competent judges in disregard of the principle of presumption of innocence.’ (para 148). Generally, the Home Office has prefixed its hash tag with the qualifier ‘suspected’. However, they have not always been so careful for in one instance the Twitter feed reported that ‘Mark Harper talks about Home Office operations today targeting #immigrationoffenders which have led to 94 arrests http://bit.ly/16mldaV’ Similarly, the headline on the Home Office website states ‘Immigration offenders arrested in Home Office operations’. In Ürfi Çetinkaya the European Court clearly cautioned against unqualified remarks on the grounds that they may encourage the public to assume the guilt of suspect without question (para 148.)

The existing case law is naturally a product of individual applications to the European Court. However, the presumption of innocence has a social, and not just a legal, aspect. The social aspect has a collective as well as an individual element and is particularly important in preventing stereotyping. As a consequence of recent political rhetoric there is a real danger that immigrants, whatever their status, will be stereotyped as ‘illegals’. The danger for both justice and social cohesion should be self-evident.

The paradox here is that the Home Office’s media spinning may also then jeopardise any subsequent trials for immigration offences. But then that will give certain febrile politicians another opportunity to complain about human rights and the pesky lawyers who use them.

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