Matthew Hyatt | Protecting the presumption of innocence

In Jamaica, people are often brought before the criminal courts to answer to charges against them. It is important to understand that such charges rest upon the foundation of mere allegations by others. Some allegations are so egregious that in the minds of the Jamaican citizens the rule of law takes a back seat and jungle justice takes over.

However, even as emotions may be at fever pitch where heinous wrongs are committed, citizens must be reminded that our Constitution provides for the right of the presumption of innocence.

This right is enshrined in the Jamaican Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 at section 16(5) which states that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.”

This Constitutional guarantee is not merely symbolic. It is the cornerstone of a fair legal system that must be respected within and outside of the courtroom. In recent times, it has been observed where media houses publish the accused’s names, their photographs and other particulars relating to the accused person even before a trial has started. This act by formal and informal publishers is wholly untenable and presents a clear and flagrant breach of the accused right to the presumption of innocence.

IMMEDIATE DAMAGE

These publications cause an immediate damage to people’s reputation. For example, allegations relating to certain sexual offences can potentially destroy a person’s career, tarnish their reputation amongst family, friends, former colleagues, and well thinking members of society in general. More often than not, even with a ‘not guilty’ outcome, the stigma of the allegations lingers for a lifetime. With social media, the names and photographs often remain permanently plastered on the internet.

There have been instances where a foreign embassy has read the allegations regarding an accused person and they were promptly sent an email to the effect that their visa has been revoked. With the advent of social media websites such as TikTok, Instagram and X, news has the capability to spread far and wide and inevitably, a public trial which may sentence people’s reputation to life imprisonment.

One may argue that even where an accused has been acquitted, the court of public opinion may find that the accused ‘got away’ simply because he or she had good representation or as result of some legal loophole or manoeuvre. Jamaican citizens often say that ‘if it nuh guh so, it near guh so’.

The debilitating impact of publishing the accused name and photo before they plead guilty or has been found guilty of a criminal offence by a properly constituted court seeks to undermine this very fundamental principle of the presumption of innocence. It is a right that seeks to protect not only a few, but every single Jamaican citizen that may be charged with a criminal offence.

RECOGNISED DANGER

Indeed, other democratic societies have recognised this danger and have enacted legislative safeguards to prevent such harm. For example, in South Australia, it is an offence for the identity of a person charged or about to be charged with a sexual offence to be published. This prohibition extends to names, addresses, images and any other information that would reasonably lead to the identification of the accused.

Similarly, in Ireland, section 8 of the Criminal Law (Rape) Act 1981 imposes a strict ban on publishing any information likely to identify a person accused of certain sexual offences before conviction. In Germany, there are strong privacy laws which restrict the identification of accused persons, particularly where publication would disproportionately harm their dignity or future reintegration into society.

These jurisdictions recognize a simple fact; allegations are easy to make, but the damage is difficult to undo. Jamaica must therefore seriously reflect on whether current media practices adequately respect constitutional guarantees. Protecting the presumption of innocence is not about silencing the victims or shielding wrongdoings.

It is about ensuring that every Jamaican citizen is treated with fairness, dignity and with due process. Allegations made against an accused does not indicate that a person is guilty and as such the presumption of innocence must be protected by the very citizens who it is intended to benefit.

Matthew Hyatt is an attorney-at-law. Send feedback to matthew.hyatt_1@hotmail.com and columns@gleanerjm.com