Galetta: The changing nature of the presumption of innocence in today's surveillance societies: rewrite human rights or regulate the use of surveillance technologies?

The changing nature of the presumption of innocence in today's surveillance societies: rewrite human rights or regulate the use of surveillance technologies?

Antonella Galetta [1]

Cite as: Galetta, A, 'The changing nature of the presumption of innocence in today's surveillance societies: rewrite human rights or regulate the use of surveillance technologies?' European Journal of Law and Technology, Vol. 4, No. 2, 2013

Abstract

Surveillance technologies and practices are widely used by police and security forces today. They represent the cornerstone of modern investigative methodologies and techniques and their added value is associated with effectiveness and smartness. Although the way surveillance technologies and practices operate is pretty known, their manifold and subtle effects on human rights are mostly unknown and obscure. This is particularly the case when analysing the role of surveillance measures (used for police and security purposes) in criminal proceedings. The impact of surveillance on the right to be presumed innocent is not a novelty in surveillance studies. However, it has not been debated in detail and has not caught the due attention it deserves.

The widespread use of surveillance technologies and their huge technological potential emphasise the need to focus on the relationship between surveillance and the presumption of innocence. The link between surveillance and the presumption of innocence is very close, considered that surveillance measures are deployed to control, detect, deter and prevent crime. However, the extensive use of surveillance technologies has caused a substantial rift in the relationship between them. From a criminal law point of view, the presumption of innocence is applicable only in the framework of a criminal proceeding. It provides a procedural guarantee only to persons charged with a criminal offence before a court, notably to persons labelled as 'suspects' in a criminal trial. By contrast, the right to be presumed innocent cannot be enforced out of the context of a trial or before a charge is formally submitted. The limited applicability of the presumption of innocence clashes with the massive deployment of surveillance technologies which are used today not only to detect crime but also to prevent it.

Further to an analysis of the legal framework that applies to the presumption of innocence and of the relationship between surveillance and the presumption of innocence, this paper will try to figure out how to overcome the limits of the presumption of innocence. While doing so, it will address the rather provocative question of whether it is desirable either to reformulate human rights or better regulate the use of surveillance technologies.

Introduction

Surveillance is a key dimension [2] and product [3] of the modern world. Although it is not a product of modernity, it is one of its main institutional components. [4] Critiques of surveillance are frequently framed in terms of privacy [5] which is usually considered as the main human right that bears the brunt of surveillance interferences. Surveillance has undoubtedly a significant impact on privacy but it is also important to note that it has pervasive effects on several other human rights. If we look at criminal law, we see that all due process rights are somehow affected by the use of surveillance technologies and/or by the implementation of surveillance practices. The right to be presumed innocent is one of them. The presumption of innocence is undergoing an apparent change in criminal law which is encouraged by the increasing resort to surveillance for law enforcement purposes, as well as by contemporary trends in policing, criminology and criminal law. A comprehensive legal analysis of the presumption of innocence in today's surveillance societies cannot ignore these dynamics. The right to be presumed innocent is one of the main procedural safeguards in the framework of a criminal trial. It benefits the accused and is enforceable at trial, notably as of a criminal charge is formally submitted before a court. The right to be presumed innocent is endorsed by Article 6.2 of the European Convention on Human Rights (ECHR). This provision enshrines the corresponding right in one short sentence which needs to be understood and interpreted. In fact, the presumption of innocence is a delicate concept whose nature is twofold. As said, on the one hand, it is a human right that is referred to as the legal presumption of innocence. On the other, it is a moral value [6] which is strongly influenced by social and political perceptions. In spite of the limited scope of Art. 6.2 ECHR, the ECtHR has made several attempts to extend the interpretation of this provision, as well as its application. As I will illustrate in Section 3, the Court recognises that the presumption of innocence offers some guarantees also in the pre-trial and post-trial stages of criminal proceedings, under certain conditions. Nonetheless, it acknowledges that the presumption of innocence is also a moral value which may have a certain legal relevance. However, despite the efforts made by the ECtHR to promote an extensive interpretation of the presumption of innocence, legislation still needs to address the challenges triggered by surveillance which create a gap between surveillance and the presumption of innocence.

1. The presumption of innocence

The presumption of innocence guarantees the innocence of a person charged with a criminal offence until proved guilty according to law. Alongside international instruments, [7] this principle is endorsed by Art. 6.2 of the ECHR and Art. 48.1 of the EU Charter of Fundamental Rights [8] and provides a set of legal guarantees in criminal proceedings whose nature and purpose lay in the right to a fair trial. According to Art. 6.2 ECHR, the presumption of innocence applies to everyone who has been charged with a criminal offence, notably only to persons labelled as 'suspects' in the framework of a criminal proceeding. This principle requires that the accused must be considered innocent and treated as not having committed any offence until the prosecuting authorities of a state adduce 'sufficient evidence to satisfy an independent and impartial tribunal that he is guilty'. [9] The presumption of innocence is an evidence-based safeguard whose highest expression is given by the provision until proved guilty. The significance of this principle within a certain legal system is highly dependent on the standard of proof required to reach a guilty verdict. Although the ECHR does not define this standard, it is widely recognised as being very demanding in order to guard against wrongful and illegitimate convictions. The prosecution must prove that the accused is guilty 'beyond reasonable doubt' and any doubt should benefit the accused. The burden of proof is on the state that, through the prosecuting authorities, must satisfy this standard before addressing culpability. [10] The presumption of innocence ceases upon a court's finding of guilt. [11] The privilege or guarantee against self-incrimination (known as the principle of nemo tenetur prodere seipsum or nemo tenetur edere contra se) and the right of silence are both corollaries of the principle of the presumption of innocence. However, they will not constitute the focus of analysis of this paper.

2. The changing nature of the presumption of innocence

The imperative to fight against terrorism in the aftermath of 9/11 has contributed greatly to the rise of modern surveillance societies and to turn emergency measures into regular practices. The resort to surveillance has entailed remarkable changes in the exercise of state powers, while reshaping the scope of criminology and criminal law. In turn, this development has had significant consequences on the principle of the presumption of innocence. As I will illustrate hereafter, there are several new trends that result from the use of modern surveillance which involve policing, criminology and criminal law. The changing nature of the presumption of innocence is closely linked to them.

2.1 Surveillance, policing and criminology

There are two main trends that emerge in policing, criminology and surveillance studies nowadays, namely: (1) the expansion of powers of law enforcement authorities and intelligence forces (and the enhanced cooperation between the two) and (2) the shift to more proactive, predictive and pre-crime patterns.

Policing and investigative techniques have profoundly changed since new surveillance technologies have been deployed massively as means of law enforcement. From the mid-1990s there has been a clear tendency to expand and broaden the powers of law enforcement authorities, which have exercised a more proactive role in identifying and preventing potential criminal offences. Policing practices and methods have expanded their scope, while relying on specific surveillance techniques such as databases, profiling and data mining. The role of policing has stretched from crime control to crime deterrence and intelligence has gained a central stage in criminal law. [12] Intelligence services have been given a pivotal role in the fight against crime and terrorism and law enforcement authorities have enhanced their cooperation with intelligence forces. This has increasingly blurred the line between intelligence and police forces, in particular as regards their exchange of information. [13] This close cooperation culminated in the adoption of the European Union Council Framework Decision on the exchange of information and intelligence between law enforcement authorities of Member States in 2006. [14] The recent proposal of the European Commission for a Directive on the processing of personal in criminal matters [15] confirms this trend. Secondly, the extensive deployment of surveillance technologies in criminal proceedings has diverted the focus from post-crime to pre-crime situations. As Van Brakel and De Hert note, a shift to a more proactive, predictive and pre-crime society is emerging in policing, criminology and surveillance studies. [16] This preventative approach has been applied not only to crime detection, but also to policing. [17] Accordingly, surveillance technologies have been introduced to prevent as well as to deter crime and to avoid criminal deviance. In a proactive, predictive and pre-crime society every single person is a target of surveillance systems and practices. The pre-trial stage is at the core of any criminal proceedings and it tends to overshadow the post-trial stage, as well as the corrective and rehabilitative function of punishment. Neither the individual criminal recording, nor the criminal or social dangerousness are considered as prerequisites to justify the use of massive surveillance technologies in nowadays societies.

2.2 Surveillance, criminal proceedings and criminal law

Surveillance relates to the two aforementioned trends in that it contributes to the expansion of law enforcement and intelligence powers and to the shift towards a pre-crime society. These two dynamics are strongly permeated with political reasoning and reflect specific ideological patterns. At first glance, they could be considered as neutral from a legal perspective, given that they do not raise any specific legal concern. However, as I will demonstrate in the following paragraph, this assumption bears no correspondence to reality.

Criminal justice process is normally made of several consequent stages which range from the presumption of innocence to investigation, evidence collection, charge, trial, guilty verdict and punishment. This linear pattern is consistent with a post-crime logic which places the guilty verdict after the criminal event and the trial stage. By contrast, as McCulloch et al. underline, the pre-crime logic is the antithesis of this logic pattern. [18] Pre-crime is based on intelligence rather than evidence and pre-emption is one of its main features. As Elmer et al. suggest, pre-emption can be defined as the 'predetermined inevitable future that requires military and police action. Through the pre-emptive lens the future becomes an inevitable series of events, elevating 'fate' to an agent of historical evolution'. [19] Pre-emption requires criminal law to identify and anticipate future criminal events, well before they come into existence. It emphasises the criminal intent and conduct of a crime, especially in the early phase of a trial. As a consequence, criminal law succeeds in being effective as long as it is able to identify criminal premeditation and deliberation, instead of punishing criminal behaviour. It follows that the purpose of surveillance is to grasp that criminal intent and elaborate it further, profiling and singling out individuals. In fact, criminal law has been greatly affected by the introduction of new crime investigation methodologies and techniques which serve this purpose. The extensive use of (and reliance on) biologic samples for law enforcement purposes is indicative of how criminal investigations techniques are evolving alongside the 'traditional' tools of crime detection, such as witness evidence. Nonetheless, pre-emption is one of the key goals of surveillance societies. The maximum surveillance society [20] succeeds in being pre-emptive only if it is capable of foreseeing any criminal or social offence. [21] Consequently, everybody is considered as a potential offender in a pre-emptive society, regardless of the individual's presumption of innocence, unless proved otherwise. Thus, although the two trends described above stem from political ideologies, they have a great impact on the criminal justice process and its guarantees.

The shift towards a criminal intelligence-based process has significant impact on criminal law. Intelligence is not always based on evidence. It may have a factual basis whose legal nature, however, can be easily questioned as it is not issued from any criminal proceedings. Instead, intelligence is usually based on political trust and is not built upon any specific evidence. Most of all, it has a very low exposure to dissent, contrary to evidence which is usually adduced in cross-examination according to the equality of arms principle. This represents a matter of concern from a legal perspective given that intelligence information is increasingly used as evidence in court. Furthermore, intelligence is far more cost-effective and easier to carry out than developing a case for prosecution, though intelligence information is not as reliable as evidence. Because of the enhanced role of intelligence in police work, disruption has been identified as the main feature of new police crime control. [22] Finally, it is important to stress that the expansion of police and intelligence powers and the shift towards a proactive, predictive and pre-emptive pre-crime society are coupled with similar trends in criminal law. They can be summarised as follows: (1) greater us of diversion; (2) greater use of fixed penalties; (3) greater use of summary trials; (4) greater us of hybrid civil-criminal processes; (5) greater use of strict liability; (6) greater incentives to plead guilty; and (7) greater use of preventive orders. [23] They are all in line with the emerging trends in policing, criminology and surveillance studies and with the pre-crime logic described above. As Ashworth et al. recognise, they tend to compromise the right of defendants to be presumed innocent, relieve the prosecution of the burden of proving guilt, and may bring intolerable pressure on suspects to admit an offence they may not have committed. [24] In the following section I will focus in particular on the effects of surveillance on the presumption of innocence.

2.3 Effects of surveillance on the presumption of innocence

Surveillance has significant impacts on the rights of the accused in criminal proceedings and in general on the principle of due process. These effects concern the main guarantees established in the context of a criminal proceeding and in particular the presumption of innocence; the individual's right not to incriminate oneself (nemo tenetur edere contra se); the right to defence; and the creation of suspicion. In this section I will focus specifically on the effects on the presumption of innocence.

First, the use of surveillance technologies and practices causes a reversal of the burden of proof in criminal law. [25] When surveillance evidence is dealt with in criminal proceedings, the burden of proof tends to be shifted from the claimant to the accused or suspected. This creates a heavier burden of proof on the defendant and so increases the 'innocence threshold' to overcome in order to be acquitted. In this circumstance, the cross-examination stage of the trial focuses on the surveillance evidence and on evidences the defendant is able to provide in order to prove himself innocent. Moreover, the final judgement basically relies on the capability and ability of the defendant to demolish the claimant's accusations. The reversal of the burden of proof in criminal proceedings is apparent in the use of new surveillance technologies and practices. The UK National DNA Database (NDNAD) provides a good example in this regard. DNA profiles of more than 4 million people are registered on the NDNAD. [26] It contains the samples not only of people convicted of crimes, but also of people suspected of crimes but not convicted. Every time a new sample is collected, the NDNAD is searched against the new evidence so that to match it to the existing profile or to create a new one. The NDNAD was operated in the UK in 1995 along the premises of the 1984 Police and Criminal Evidence Act (PACE). [27] Since then, the legal framework for the regulation of the NDNAD (and for the collection and use of biological samples) has been amended several times expanding its scope and rationale in an escalating process. [28] The 2001 Criminal Justice and Police Act (CJPA) gave powers to the police to retain and search samples and profiles of individuals not convicted of a recordable offence. The Criminal Justice Act of 2003 expanded police powers' to obtain non-intimate samples [29] from any person arrested (but not convicted) of a crime, without consent. As it has been noted, these provisions have created a new category within the NDNAD, 'the one-time suspect who may never have been charged with a recordable offence and has no criminal record' [30] but whose innocence is threatened. In fact, once inside the database, people whose DNA samples are contained in the NDNAD may become suspects in a criminal investigation. [31] Moreover, they are not aware of how their profiles will be used. Notwithstanding, this surveillance pattern can result in false positives and false negatives. [32] All this, in turn, has significant impacts on the right to defence in a criminal trial and on the presumption of innocence.

The use of these practices causes broader consequences on a social and political level. The pre-emptive approach in policing exacerbated by the use of surveillance technologies spreads a great sense of suspicion within democratic societies. [33] In turn, the use of technologies of suspicion [34] threatens the typical relationship of trust that links citizens to the state, as well as the presumption of the individual's innocence. [35] The shift from a post-crime to a pre-crime surveillance society has a great impact on the relationship between citizens and the state (especially in its executive and judicial manifestations). As the 2009 report of the House of Lords recognised, the use of surveillance may disturb some of the preconditions that underpin the relationship between the individual and the state. [36] As Dahl and Sætnan underline, as an ultimate consequence surveillance creates forms of differentiation between 'we, the normal, trusted citizens' and 'they, the others, the non-trustworthy', [37] so undermining the basic pillars of democracy. Although the NDNAD is just an example of how surveillance technologies and practices can infringe the principle of the presumption of innocence, it is typical of how surveillance may create widespread suspicion and attach criminal labels imprudently. These considerations were put forward by the ECtHR in the case S. and Marper v. United Kingdom (see infra Section 3).

3. Surveillance and the presumption of innocence: case law of the ECtHR

If we stick to the word of Art. 6 ECHR, we deduce that the presumption of innocence does not benefit persons who are not charged with a criminal offence, as well as persons who are presumed of having committed a crime but not formally charged before a court. [38] As a consequence, we can identify three different stages in which the presumption of innocence does not apply de facto, namely: (1) before a charge is formally submitted; (2) after an acquittal judgement; and (3) after a penalty has been served. From a legal perspective, these stages are grey areas in which the presumption of innocence can be threatened but individuals might not plead it successfully. This section will investigate whether the presumption of innocence could be invoked and applied de jure in these three circumstances, looking at the case law of the ECtHR. As I will illustrate hereafter, the ECtHR promotes a wider interpretation of the presumption of innocence and does not consider it as a mere procedural guarantee.

3.1 An extensive interpretation of the presumption of innocence

The reasoning of the ECtHR as regards the applicability of the presumption of innocence makes a clear distinction between the categories of 'suspected' and 'accused', as well as between pre-trial and post-trial stages within a proceeding. In Adolf v. Austria and Lutz v. Federal Republic of Germany the ECtHR stated that judicial decisions that do not contain any finding of guilt but that only describe a state of suspicion do not call into question the individual's presumption of innocence. [39] The voicing of suspicion does not have any legal significance unless specific charges are brought before a court. In Sekanina v. Austria [40]the Court made an even clearer distinction between suspicions and accusations and clarified how they relate to the presumption of innocence. The ECtHR pointed out that 'the voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation' and that 'it is no longer admissible to rely on such suspicions once an acquittal has become final'. [41] Most of all, the Court said that no authority or court may rely on charges that have been proved to be unfounded. [42] This approach was followed also in Asan Rushiti v. Austria where the Court argued that 'following a final acquittal, even the voicing of suspicions regarding the accused's innocence is no longer admissible'. [43]

Statements made by judicial authorities infringe the presumption of innocence if they express opinions about the culpability of the accused before the judicial verdict. In Barberà, Messegué and Jabardo v. Spain the ECtHR argued that the presumption of innocence requires that 'the members of the court should not start with the preconceived idea that the accused has committed the offence charged' [44] and that this procedural guarantee is violated whenever 'without the accused's having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilt'. [45] This finding was further emphasised in Khuzhin and others v. Russia [46] where the Court assessed a violation of Art. 6.2 ECHR perpetrated by public prosecution officials who had made specific statements related to pending criminal proceedings on television. In particular, their comments portrayed the accused as hardened criminals and revealed that the commission of the alleged crime had been the result of their 'personal qualities', including their 'cruelty and meaningless brutality'. The ECtHR found that these claims amounted 'to a declaration of the applicants' guilt and prejudged the assessment of the facts by the competent judicial authority'. [47] In addition, the Court underlined that the statements encouraged the public to believe the applicants guilty before the guilty verdict. [48] Judges and prosecutors are not the only authorities that have to abstain from expressing opinions on the defendant's culpability in the early stages of a criminal proceeding. InAllenet de Ribemont v. France [49] the Court admitted that a violation of Art. 6.2 ECHR may occur not only in the context of a judicial decision but also before a charge is formally submitted before a court. The ECtHR found that a statement made on television by a high-ranking police officer infringed Art. 6.2 ECHR considered that this declaration concerned the applicant's guilt and, 'firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority'. [50] As a consequence, the ECtHR recognised that 'the presumption of innocence may be infringed not only by a judge or court but also by other public authorities'. [51] This implies that the right to be presumed innocent must be ensured not only by the judicial authorities but also by other public authorities such as the police.

3.2 Legal presumption v. moral presumption

The jurisprudence of the ECtHR shows that the Court is aware that infringements to the presumption of innocence may occur not only in the framework of a trial but also in the pre-trial and post-trial stages of a criminal proceeding. Accordingly, the ECtHR is inclined to extend the guarantee of the presumption of innocence de jure also to those grey areas identified earlier in this section. The ECtHR sees the presumption of innocence as a broad principle whose application goes beyond the boundaries of criminal trial. [52] Thus, the Court favours an extensive interpretation of this procedural guarantee.

Why does the Court tend to stretch the principle of the presumption of innocence? One of the main reasons is that the presumption of innocence has a 'reputation-related aspect' which is aimed to protect the image of the person deemed to be innocent. [53] Accordingly, the presumption of innocence is also meant to safeguard a person's reputation and so it relates to Art. 8 ECHR to a certain extent. [54] This explanation leads us to the consideration that the presumption of innocence is made up of two dimensions, namely: (1) the legal presumption; and (2) the moral presumption. The legal presumption of innocence protects the accused from being convicted of a criminal offence where it has not been proved beyond reasonable doubt that his conduct constitutes such an offence. The moral presumption of innocence protects the accused from being convicted of a criminal offence 'where his conduct is of the kind that ought not to be criminal'. [55] There is a striking difference between these two aspects. The legal presumption is highly dependent on the law which sets the burden and standard of proof regarding offences and defences. By contrast, the moral presumption involves the court 'in moral and political assessment of the legitimacy of substantive criminal law'. [56] As a consequence, the legal presumption of innocence operates in the trial stage of a criminal proceeding, whereas the moral presumption of innocence may be called into question in the pre-trial stage. The former originates legal culpability, whereas the latter gives rise to moral culpability. The legal presumption of innocence is recognised and regulated by law, whereas the moral presumption of innocence is not. These considerations urge the need to investigate whether the moral presumption of innocence might have any legal relevance in the pre-trial stage of a criminal proceeding. Nonetheless, this is one of the core questions in the debate about surveillance and the presumption of innocence, as I will explain in Section 3.3.

3.3 Presumption of innocence v. presumption of guilt

The limited applicability of the presumption of innocence in pre-trial contexts represents a great matter of concern in our surveillance societies, given the widespread and massive use of surveillance technologies and their potential intrusiveness. Indeed, as explained above, surveillance technologies and practices do not target only criminals but the whole society and their purposes go far beyond criminal proceedings. Surveillance practices are implemented both within and outside the scope of criminal trials and this causes a gap in the application and enforceability of the principle of the presumption of innocence. As we have seen in the previous section, the moral presumption contributes to establish culpability. Hereafter I will investigate whether it is legally relevant, while referring to the case S. and Marper v. United Kingdom. [57]

The link between Art. 6.2 and Art. 8 ECHR and the moral significance of the presumption of innocence emerged clearly in S. and Marper. The case concerned two individuals, Mr S. and Mr Marper. Eleven years old, the former was arrested in January 2011 and acquitted in June of the same year. The latter was arrested in March 2011 and then his case was formally discontinued in June 2011. Once arrested, their fingerprints and DNA samples were taken, according to the provisions of the Police and Criminal Evidence Act of 1984. The applicants complained under Art. 8 ECHR about the retention of their fingerprints, cellular samples and DNA profiles pursuant to section 64 (1A) of the Police and Criminal Evidence Act. [58] Although they did not invoke Art. 6.2 ECHR, the ECtHR referred to the presumption of innocence in the context of an acquittal judgement and case dismissal, that is in the post-trial stage of a criminal proceeding. The Court found that, given the circumstances of the case, the indefinite retention of the applicants' fingerprints, cellular samples and DNA profiles resulted in the fact that the claimants were treated like convicted persons and created the perception that they were not innocent. [59] The Court did not declare explicitly that the retention of the applicants' personal data infringed the presumption of innocence of the applicants. However, it recognised that the concerned retention created the risk of stigmatisation due to the fact that the innocent applicants had been treated as convicted persons. The mere retention and storing of personal data by public authorities gave rise to the perception that the defendants were not innocent, which was heightened by the fact that their data were retained indefinitely (in the same ways as the data of convicted persons). [60] Nonetheless, the Court found that the retention at issue constituted a disproportionate interference with Art. 8 ECHR and could not be considered as necessary in a democratic society. [61]

In the S. and Marper case the use of surveillance for law enforcement purposes confronts with private life concerns and the presumption of innocence. The ECtHR warns public authorities against the 'blanket and indiscriminate' [62] use of surveillance technologies stressing that these practices can impact not only on the individual right to privacy but also on other human rights, such as the right to be presumed innocent. One of the main concerns of the Court is about the risk of stigmatisation which has been defined as the 'pérennisation de la catégorie de «suspect»'. [63] The Court recognises that the indefinite retention of fingerprints, cellular samples and DNA profiles for law enforcement purposes may shrink the presumption of innocence, while enlarging the category of 'suspect'. The widespread perception of suspicions that follows, in turn, undermines the presumption of innocence. The creation of suspicion is one of the main themes of the Court when analysing the impact of surveillance technologies on the presumption of innocence. The ECtHR underlines that suspicions stem from public perceptions which can be somehow warped by stigmatisation. The Court admits implicitly that public perceptions can play a crucial role in defining the culpability of an individual, especially in the post-trial stage. In addition, the Court seems to acknowledge that they have a certain relevance within the legal reasoning, considered that individuals should be given protection against false perceptions. As a consequence, in S. and Marper the ECtHR ascribes public perceptions to legal significance. Nonetheless, it recognises that the presumption of innocence does not only give rise to a human right but also to a moral value that should be safeguarded.

4. Restoring law

The analysis carried out in the previous sections leads us to one of the key questions in dealing with surveillance technologies. Should we rely on surveillance technologies in the fight against crime and terrorism? What is the threshold that should not be overcome to avoid the risk of stigmatisation? Surveillance represents a value added for criminal investigations and plays an important role in the framework of criminal proceedings. Its potential should not be denied, nor disregard. As the ECtHR recognised in S. and Marper, the fight against crime, and in particular against organised crime and terrorism, 'depends to a great extent on the use of modern scientific techniques of investigation and identification'. The use of surveillance technologies and practices such as DNA profiling offers 'advantages to the criminal-justice system'. [64] It would be unrealistic and naïve to think of a justice system in which surveillance is not part of crime detection and prevention. Still, surveillance has proved to be effective in the fight against crime and terrorism. However, the democratic character of a state lays also in the evaluation of surveillance in terms of 'potential cost to political freedom and the maintenance of democratic values'. [65] As Goold points out, 'there is little point in the state seeking to create a society free from crime and secure against terrorist threats if the overall cost is a severe loss of personal freedom and the introduction of Orwellian, authoritarian government'. [66] Thus, specific safeguards should be put in place to counterbalance surveillance and its negative side-effects on human rights. These guarantees could be legal, political, social and/or moral. In the S. and Marper case the ECtHR found them in Art. 8 ECHR. As the Court stressed, despite their advantages to the criminal justice system, surveillance technologies should not be allowed 'at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests'. [67]

The case law of the ECtHR illustrates clearly the limits in the applicability of the presumption of innocence and the threats posed to this fundamental right by surveillance. In spite of the remarkable attempts made by the ECtHR to extend the applicability of the presumption of innocence, the enforceability of this principle is far from being effective in contemporary societies. Moreover, a more coherent and systematic legal framework for regulating surveillance and its effects on the presumption of innocence is still needed. On the one hand, Art. 6.2 ECHR seems to be equivocal on the definition of the presumption of innocence, in particular as regards the procedural stage as of the presumption of innocence applies. On the other, the case law of the ECtHR does not provide sufficient safeguards to ensure adequate legal protection to individuals suspected of a crime but not formally accused. Indeed, though the ECtHR does not ascribe any legal value to voicing of suspicion unless a guilty verdict occurs, suspicion can anyway undermine the individual presumption of innocence.

The rift in the relationship between surveillance and the presumption of innocence questions the role of legislation in safeguarding human rights while ensuring security. Moreover, the impact of surveillance on the presumption of innocence mirrors the incapability of legislation to keep pace with technology and surveillance technology in particular. Given the existing legal framework, the gap between surveillance and the right to be presumed innocent could be bridged by expanding the applicability of the presumption of innocence or enforcing new regulations concerning the use of surveillance technologies in the framework of criminal proceedings. These two possibilities represent viable options to deal with the existing gaps in European law and case law on the presumption of innocence. In the first case scenario, an expansion of the scope of the presumption of innocence would imply its application in the pre-trial stage of criminal proceedings, so benefiting not only the accused but also the mere suspect. A clear stance of the Court of Strasbourg on this point would be highly desirable. This expansion could also be made recognising explicitly the intrinsic moral value of the right to be presumed innocent, in line with the Marper case. Nonetheless, a greater protection of the presumption of innocence could also derive from the implementation of new provisions on the use of surveillance technologies or surveillance practices. This goal could be pursued for instance exempting individuals who have not been charged of any criminal offence from the obligation to hand over DNA samples.

5. Concluding remarks

The analysis developed in this paper leads us to the conclusion that the erosion of the presumption of innocence in contemporary surveillance societies is not the mere product of a surveillance paranoia but a matter of fact that confronts us with legal concerns. Surveillance practices may undermine existing criminal law guarantees and constitutional freedoms. In addition, the changing character of the presumption of innocence must be framed in the broader context of the current trends in criminal law, policing and criminology. They all influence and alter the nature of the presumption of innocence. Too often discourses about the use of surveillance are framed in terms of security. The security argument is a sort of leitmotiv in surveillance studies which has been often used to justify the introduction of new surveillance techniques and to dissimulate the expansion of state powers. Similarly, it has been put forward to justify the resort to highly intrusive surveillance practices. [68] Surveillance based on security is a highly political concept which is hardly questionable from a legal perspective. However, it must be recognised that it might be a dangerous blanket term to legitimise the introduction of unlimited surveillance powers and to increase social acceptance and confidence in surveillance. As illustrated in this paper, this is an issue which the legal reasoning has to confront with, given that this argument may lead to human rights infringements. This implies that the security paradigm should always be considered together with other paradigms, first and foremost privacy. Hence, it is imperative to frame security into privacy patters in order to answer the question of how much surveillance is too much in a democratic society. [69]

Nonetheless, the discourse about how to make surveillance more respectful of human rights should also be analysed from a different perspective. If we keep on thinking of surveillance as detrimental to the presumption of innocence (and to human rights in general), we will barely accept it as a tool to fight crime and terrorism and we will never appreciate the true advantages it brings. Thus, we need somehow to shift this point of view and to go beyond the cause-effect scheme. Can we think of surveillance as a tool to validate and create innocence rather than violating the presumption of innocence? This scenario seems to be far from our contemporary experience of surveillance. Of course, this possibility will highly depend on the capability of future surveillance practices to be more targeted and less pervasive. Finally, as explained in this paper, the limited enforceability of the presumption of innocence mirrors the incapability of legislation to keep pace with technology and surveillance technologies in particular. However, it is important to point out that law is always the product of society and society recognises itself into law. A certain society can be defined as modern or democratic looking at the legal system and laws it is endowed with. Indeed, law can be considered as the litmus test of a society. However, in order to pass this test, law must mirror societal developments and provide answers to social needs. 'Living law' is the highest expression of the synthesis between law and society. Whenever law fails to mirror society, then it becomes anachronistic and so loses its raison d'être. If we do not want our principles and laws to fall into oblivion and disuse, efforts are needed to make law keep pace with society; to let the presumption of innocence take up new surveillance challenges.

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Bellanova, R. and De Hert P., 'Le cas S. et Marper et les donnees personnelles : l'horloge de la stigmatisation stoppee par un arret Europeen', Cultures & Conflicts 76, 2009.

Campbell, Liz, 'A rights-based analysis of DNA retention: 'non-conviction' databases and the liberal state', Criminal Law Review, 889, 2010.

Campbell, Liz, 'Criminal labels, the European Convention on Human Rights and the presumption of innocence', Edinburgh School of Law Research Paper Series, No. 2012/25, University of Edinburgh, 2012.

Campbell, Nancy D., 'Technologies of Suspicion: Coercion and Compassion in Post-disciplinary Surveillance Regimes', Surveillance & Society, Vol. 2, No. 1, 2004.

Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, OJ L386/89, 29 December 2006.

Dahl, Johanne Y., and Ann Rudinow Sætnan, ''It all happened so slowly': On controlling function creep in forensic DNA databases', International Journal of Law, Crime and Justice, Vol. 37, No. 3, 2009.

De Goede, Marieke, The Politics of Pre-emption and the War on Terror in Europe, European Journal of International Relations, Vol. 14 (1), 2008.

Elmer, Greg and Andy Opel, 'Surviving the inevitable future', Cultural Studies, 20:4-5, 2006.

Ericson, Richard V., and Kevin D. Haggerty, Policing the Risk Society, Oxford University Press, Oxford, 1997.

European Commission, Green Paper, The presumption of innocence, COM (2006) 174 final, Brussels, 26 April 2006.

Gary T. Marx 'La societé de Securité Maximale', Déviance et Societé, Vol. 12, No. 2, 1988.

Giddens, Anthony, The Consequences of Modernity, Polity Press, Cambridge, 1990.

Goold, Benjamin, 'How much surveillance is too much? Some thought on surveillance, democracy, and the political value of privacy', in Schartum, D.W. (ed.), Overvåkning i en rettsstat - Surveillance in a Constitutional Government, Bergen, Fagbokforlaget, 2010.

Gutwirth, Serge, Yves Poullet and Paul De Hert (eds.), Data Protection in a Profiled World, Dordrecht, Springer, 2010.

Haggerty, Kevin D., and Richard V. Ericson, 'The Surveillant Assemblage', The British Journal of Sociology, Vol. 51, No. 4, December 2000.

House of Lords, Select Committee on the Constitution, Surveillance: Citizens and the State, 2nd Report of Session 2008-2009, HL Paper 18-I, Volume I.

Innes, Martin and James W. E. Sheptycki, 'From detection to disruption: intelligence and the changing logic of police crime control in the United Kingdom', International Criminal Justice Review, Vol. 14, 2004.

Lyon, David, Surveillance after September 11, Polity Press, Cambridge, UK, 2003.

Lyon, David, Surveillance Society. Monitoring Everyday Life, Open University Press, London, UK, 2001.

Marx, Gary T., 'Seeing Hazily, But Not Darkly, Through the Lens: Some Recent Empirical Studies of Surveillance Technologies', Law and Social Inquiry , Vol. 30, No. 2, Spring 2005.

Marx, Gary T., Undercover: Police Surveillance in America, University of California Press, Berkeley, 1989.

McCulloch, Jude and Sharon Pickering, 'Pre-crime and Counter-terrorism: Imagining Future Crime in the 'War on Terror'', British Journal of Criminology, Vol. 49, 2009.

Monahan, Torin, Surveillance in the Time of Insecurity, Rutgers University Press, New Brunswick, NJ, 2010.

Norris, Clive and Gary Armstrong, The Maximum Surveillance Society: the Rise of CCTV, Berg, New York, 1999.

Surveillance Studies Network, A Report on the Surveillance Society, Office of the Information Commissioner, Wilmslow, 2006.

Tadros, Victor, 'Rethinking the presumption of innocence', Criminal Law and Philosophy, Vol. 1, No. 2, 2007.

Thomas Misa, Philip Brey and Andrew Feenberg (eds.) Modernity and Technology, the MIT Press, Cambridge, MA, 2003.

Trechsel, Stephen, Human Rights in Criminal Proceedings, Collected Courses of the Academy of European Law, Oxford University Press, 2005.

Van Brakel, Rosamunde and Paul De Hert, 'Policing, surveillance and law in a pre-crime society: Understanding the consequences of technology based strategies', Journal of Police Studies, 2011, Issue 20, Vol. 20, No. 3.

Wright, David, Serge Gutwirth, Michael Friedewald, Paul De Hert, Marc Langheinrich and Anna Moscibroda, 'Privacy, trust and policy-making: Challenges and responses', Computer Law & Security Review, Vol. 25, No. 1, 2009.

Case law

ECtHR, Adolf v. Austria, application no. 8269/78, Strasbourg, 26 March 1982.

ECtHR, Allenet de Ribemont v. France, application no. 15175/89, Strasbourg, 10 February 1995.

ECtHR, Asan Rushiti v. Austria, application no. 28389/95, Strasbourg, 21 March 2000.

ECtHR, Barberà, Messegué and Jabardo v. Spain, application no. 10590/83, Strasbourg 6 December 1988.

ECtHR, Khuzhin and others v. Russia, application no. 13470/02, Strasbourg, 23 October 2008.

ECtHR, Lutz v. Federal Republic of Germany, application no. 9912/82, Strasbourg, 25 August 1987.

ECtHR, Minelli v. Switzerland, application no. 8660/79, Strasbourg, 25 March 1983.

ECtHR, S. and Marper v. United Kingdom, applications 30562/04 and 30566/04, Strasbourg, 4 December 2008.

ECtHR, Sekanina v. Austria, application no. 13126/87, Strasbourg, 25 August 1993.



[1] PhD researcher, Vrije Universiteit Brussel (VUB), Faculty of Law and Criminology, Research Group on Law, Science, Technology and Society Studies (LSTS), Brussels, Belgium. Email contact: antonella.galetta@vub.ac.be Author's note. This paper is partly based on research undertaken in the framework of the FP7 European Project IRISS: Increasing Resilience in Surveillance Societies

[2] Bauman, Zygmunt and David Lyon, Liquid Surveillance. A conversation, Cambridge, UK, Malden, USA, Polity Press, 2013, p. 1.

[3] Lyon, David, 'Surveillance Technology and Surveillance in Modernity and Technology', in Thomas Misa, Philip Brey and Andrew Feenberg (eds.) Modernity and Technology, the MIT Press, Cambridge, MA, 2003, p. 161.

[4] Giddens, Anthony, The Consequences of Modernity, Polity Press, Cambridge, 1990, p. 57, and Haggerty, Kevin D., and Richard V. Ericson, 'The Surveillant Assemblage', The British Journal of Sociology, Vol. 51, No. 4, December 2000, pp. 605-620, p. 606.

[5] Surveillance Studies Network, A Report on the Surveillance Society, Office of the Information Commissioner, Wilmslow,2006,p.12. http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/surveillance_society_full_report_2006.pdf .

[6] Tadros, Victor, 'Rethinking the presumption of innocence', Criminal Law and Philosophy, Vol. 1, No. 2, 2007, pp. 193-213.

[7] The principle of the presumption of innocence is mentioned by the Universal Declaration of Human Rights which states that 'Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in public trial at which he has had all the guarantees necessary for his defence' (Art. 11.1). The United Nation Covenant on Civil and Political Rights establishes that 'Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law' (Art. 14.2).

[8] Art. 6 ECHR lays down the rules for the exercise of the 'right to a fair trial'. Art. 6.2 of the ECHR states that 'Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law'. Art. 48.1 of the Charter claims that 'Everyone who has been charged shall be presumed innocent until proved guilty according to law'.

[9] European Commission, Green Paper, The presumption of innocence, COM (2006) 174 final, Brussels, 26 April 2006.

[10] It is important to note that there are exceptions to the rule of burden of proof on the prosecution. The European Commission has identified three situations in which the burden of proof is not wholly on the prosecuting authorities, namely: (1) strict liability offences; (2)offences where the burden of proof is reversed; (3) when a confiscation order is made. European Commission, Green Paper, The presumption of innocence, COM (2006) 174 final, Brussels, 26 April 2006, p. 6.

[11] Generally, a first-instance judgement is sufficient to fulfil this condition but there are different opinions on this and different experiences across European Member States can be found.

[12] McCulloch, Jude and Sharon Pickering, 'Pre-crime and Counter-terrorism: Imagining Future Crime in the 'War on Terror'', British Journal of Criminology, Vol. 49, 2009, 628-645, pp. 634-635.

[13] Vervaele, John A. E., 'Information sharing between intelligence and law enforcement authorities in combating international terrorism', in Becker, Steven W. and Derenčinović D. (eds.), International Terrorism: The future unchained?, University Press, Zagreb, 2008.

[14] Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, OJ L386/89, 29 December 2006, pp. 89-100.

[15] European Commission, Proposal for a Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigations, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data (General Data Protection Directive), COM(2012) 10 final, Brussels, 25 January 2012.

[16] Van Brakel, Rosamunde and Paul De Hert, 'Policing, surveillance and law in a pre-crime society: Understanding the consequences of technology based strategies', Journal of Police Studies, 2011, Issue 20, Vol. 20, No. 3, pp. 163-192, p. 3.

[17] The Surveillance Studies Network, A report on the Surveillance Society, Office of the Information Commissioner, Wilmslow,2006, p. 6.

[18] McCulloch, Jude and Sharon Pickering, 'Pre-crime and Counter-terrorism: Imagining Future Crime in the 'War on Terror'', p. 632.

[19] Elmer, Greg and Andy Opel, 'Surviving the inevitable future', Cultural Studies, 20:4-5, 2006, pp. 477-492, p. 480. In Elmer's view, intelligence is the key to disclose the 'inevitable future'. He compares intelligence to the 'pre-cogs' of Minority Report.

[20] The expression 'maximum surveillance society' was used by Norris and Armstrong in Norris, Clive and Gary Armstrong, The Maximum Surveillance Society: the Rise of CCTV, Berg, New York, 1999. It recalls the broader concept of 'maximum security society' used by Gary T. Marx in 'La societé de Securité Maximale', Déviance et Societé, Vol. 12, No. 2, 1988, pp. 147-166 in which the maximum security prison is considered as the paradigm of the controlling power exercised in modern societies.

[21] McCulloch, Jude and Sharon Pickering, 'Pre-crime and Counter-terrorism: Imagining Future Crime in the 'War on Terror'', pp. 632-638 and De Goede, Marieke, The Politics of Preemption and the War on Terror in Europe, European Journal of International Relations, Vol. 14 (1), 2008, 161-185, p. 164.

[22] Innes, Martin and James W. E. Sheptycki, 'From detection to disruption: intelligence and the changing logic of police crime control in the United Kingdom', International Criminal Justice Review, Vol. 14, 2004, pp. 1-24. Here the authors argue that although disruption has always been an available option in terms of how police forces responded to crime, nowadays it has become 'established as a de facto (and almost a preferred) strategy'.

[23] Ashworth, Andrew and Lucia Zedner, 'Defending the criminal law: reflections on the changing character of crime, procedure and sanctions', Criminal Law and Philosophy, Vol. 2, Issue 1, 2008, pp. 21-51. The first trend implies the diversion of the accused from trial to alterative programmes. The resort to fixed penalties consists in the standardisation of penalties and in treating crimes as administrative sanctions. The use of summary trials shifts responsibilities in criminal law from judges to magistrates and arbitrators. Hybrid civil-criminal processes result from breaches of civil orders and strict liability judgments do not require the prosecution to prove any fault on the part of the defendant. Incentives to plea guilty reduce sentence for the defendant. Lastly, the great use of preventive orders confirms the pre-crime approach in criminal law. Although the authors refer these trends to the English criminal law trial, they can also be found across Europe.

[24] Ashworth, Andrew and Lucia Zedner, 'Defending the criminal law: reflections on the changing character of crime, procedure and sanctions', Criminal Law and Philosophy, Vol. 2, Issue 1, 2008, pp. 21-51

[25] Gary T. Marx was one of the first surveillance scientists to analyse the phenomenon of the reversal of the presumption of innocence. See, for example, Marx, Gary T., Undercover: Police Surveillance in America, University of California Press, Berkeley, 1989 and Marx, Gary T., 'Seeing Hazily, But Not Darkly, Through the Lens: Some Recent Empirical Studies of Surveillance Technologies', Law and Social Inquiry, Vol. 30, No. 2, Spring, 2005.

[26] In April 2009, 4.5 million people were on the National DNA Database, of whom 21.5 per cent had no previous conviction or caution. See the BBC News website: http://news.bbc.co.uk/2/hi/uk_news/8375567.stm (last accessed 15 January 2013).

[27] UK Parliament, Police and Criminal Evidence Act (PACE), 1984, (1984 c. 60).

[28] Although an analysis of the legal framework for the operationalisation of the NDNAD would fall out of the scope of this paper, it suffices to mention here the Criminal Justice and Public Order Act (CJPOA) of 1994; the Criminal Procedure and Investigations Act of 1996; the Criminal Evidence (Amendment) Act of 1997; the Criminal Justice and Police Act (CJPA) of 2001; the Criminal Justice Act (CJA) of 2003. For a more detailed examination of the legal and historical basis of the NDNAD see Williams, Robin, and Paul Johnson, Genetic Policing. The use of DNA in criminal investigations, Willan Publishing, 2008, pp. 77-100.

[29] PACE provisions distinguished between intimate and non-intimate samples. Non-intimate samples were samples of hair, taken from a nail or under the nail, a swab taken from any part of a person's body other than an orifice and footprints taken from any part of the body other than the hand. PACE, 62-63.

[30] Williams, Robin, and Paul Johnson, Genetic Policing. The use of DNA in criminal investigations, Willan Publishing, 2008, p. 87.

[31] Dahl, Johanne Y., and Ann Rudinow Sætnan, ''It all happened so slowly': On controlling function creep in forensic DNA databases', International Journal of Law, Crime and Justice, Vol. 37, No. 3, 2009, pp. 83-103.

[32] Gutwirth, Serge, and Mireille Hildebrandt, 'Some Caveats on Profiling', in Serge Gutwirth, Yves Poullet and Paul De Hert (eds.), Data Protection in a Profiled World, Dordrecht, Springer, 2010, p. 34.

[33] Lyon, David, Surveillance after September 11, Polity Press, Cambridge, UK, 2003, pp. 45-49.

[34] Campbell, Nancy D., 'Technologies of Suspicion: Coercion and Compassion in Post-disciplinary Surveillance Regimes', Surveillance & Society, Vol. 2, No. 1, 2004, pp. 78-92.

[35] The citizens' distrust of democratic institutions has been widely observed in surveillance studies. See, for example, Lyon, David, Surveillance Society. Monitoring Everyday Life, Open University Press, London, UK, 2001, and Wright, David, Serge Gutwirth, Michael Friedewald, Paul De Hert, Marc Langheinrich and Anna Moscibroda, 'Privacy, trust and policy-making: Challenges and responses', Computer Law & Security Review, Vol. 25, No. 1, 2009, pp. 69-83. Clive Norris clearly described this dynamic in his evidence to the House of Lords: 'Mass surveillance promotes the view … that everybody is untrustworthy. If we are gathering data on people all the time on the basis that they may do something wrong, this is promoting a view that as citizens we cannot be trusted'. House of Lords, Select Committee on the Constitution, Surveillance: Citizens and the State, 2nd Report of Session 2008-2009, HL Paper 18-I, Volume I: Report, pp. 1-130, p. 27, para. 107.

[36] House of Lords, Select Committee on the Constitution, Surveillance: Citizens and the State, pp. 26-27.

[37] Dahl, Johanne Y., and Ann Rudinow Sætnan, ''It all happened so slowly': On controlling function creep in forensic DNA databases', , International Journal of Law, Crime and Justice, Vol. 37, No. 3, 2009, p. 91.

[38] As the ECtHR underlined in Adolf v. Austria, 'The prominent place held in a democratic society by the right to a fair trial favours a 'substantive', rather than a 'formal', conception of the 'charge' referred to by Article 6 (Art. 6); it impels the Court to look behind the appearances and examine the realities of the procedure in question in order to determine whether there has been a 'charge' within the meaning of Article 6'. ECtHR, Adolf v. Austria, application no. 8269/78, Strasbourg, 26 March 1982, para. 30.

[39] ECtHR, Adolf v. Austria,, para. 40 and ECtHR, Lutz v. Federal Republic of Germany, application no. 9912/82, Strasbourg, 25 August 1987, para. 62.

[40] ECtHR Sekanina v. Austria, application no. 13126/87, Strasbourg, 25 August 1993

[41] In Sekanina v. Austria the applicant claimed that the judicial decision refusing compensation for unjustified detention violated his presumption of innocence (art 6.2 ECHR), para. 37.

[42] As the ECtHR pointed out, 'No authority may treat a person as guilty of a criminal offence unless he has been convicted by the competent court and in the case of an acquittal the authorities may not continue to rely on the charges which have been raised before that court but which have been proved to be unfounded. This rule also applies to courts which have to deal with non-criminal consequences of behaviour which has been subject to criminal proceedings. They must be bound by the criminal court's finding according to which there is no criminal responsibility for the acts in question although this naturally does not prevent them to establish, e.g. a civil responsibility arising out of the same facts'. ECtHR, Sekanina v. Austria, para. 37.

[43] ECtHR, Asan Rushiti v. Austria, application no. 28389/95, Strasbourg, 21 March 2000, para. 31.

[44] ECtHR, Barberà, Messegué and Jabardo v. Spain, application no. 10590/83, Strasbourg 6 December 1988, para. 77.

[45] ECtHR, Barberà, Messegué and Jabardo, para. 91. This finding was also reached in ECtHR, Minelli v. Switzerland, application no. 8660/79, Strasbourg, 25 March 1983.

[46] ECtHR, Khuzhin and others v. Russia, application no. 13470/02, judgement of 23 October 2008.

[47] ECtHR, Khuzhin and others v. Russia, para. 150.

[48] ECtHR, Khuzhin and others v. Russia, para. 150.

[49] In Allenet de Ribemont v. France the ECtHR was asked to decide whether specific statements made by politicians and high-ranking police officers on television during a murder investigation infringed Art. 6 ECtHR and in particular the applicant's presumption of innocence. ECtHR, Allenet de Ribemont v. France, application no. 15175/89, Strasbourg, 10 February 1995.

[50] ECtHR, Allenet de Ribemont v. France, para. 33-36.

[51] ECtHR, Allenet de Ribemont v. France.

[52] Campbell, Liz, 'Criminal labels, the European Convention on Human Rights and the presumption of innocence', Edinburgh School of Law Research Paper Series, No. 2012/25, University of Edinburgh, 2012.

[53] Trechsel, Stephen, Human Rights in Criminal Proceedings, Collected Courses of the Academy of European Law, Oxford University Press, 2005, p. 164 and Campbell, Liz, 'A rights-based analysis of DNA retention: 'non-conviction' databases and the liberal state', Criminal Law Review, 889, 2010, p. 7.

[54] Art. 8 ECHR safeguards the individual's right to respect for private and family life and states that: 'Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

[55] Tadros, Victor, 'Rethinking the presumption of innocence', Criminal Law and Philosophy, Vol. 1, No. 2, 2007, pp. 193-213, p. 197.

[56] Tadros, Victor, 'Rethinking the presumption of innocence', Criminal Law and Philosophy, Vol. 1, No. 2, 2007, pp. 193-213, p. 197.

[57] ECtHR, S. and Marper v. United Kingdom, applications 30562/04 and 30566/04, Strasbourg, 4 December 2008.

[58] Section 64 (1A) of the Police and Criminal Evidence Act prescribed that fingerprints or samples taken from a person in connection with the investigation of an offence might be retained after they had fulfilled the purposes for which they were taken.

[59] ECtHR, S. and Marper v. United Kingdom, para. 122 and 125.

[60] ECtHR, S. and Marper v. United Kingdom, para. 122.

[61] ECtHR, S. and Marper v. United Kingdom, para. 125.

[62] ECtHR, S. and Marper v. United Kingdom, para. 119.

[63] Bellanova, R. and De Hert P., 'Le cas S. et Marper et les données personnelles : l'horloge de la stigmatisation stoppée par un arrêt européen', Cultures & Conflits 76, 2009, pp. 101-114, p. 10.

[64] ECtHR, S. and Marper v. United Kingdom, para. 105.

[65] Goold, Benjamin, 'How much surveillance is too much? Some thought on surveillance, democracy, and the political value of privacy', in Schartum, D.W. (ed.), Overvåkning i en rettsstat - Surveillance in a Constitutional Government, Bergen, Fagbokforlaget, 2010, pp. 38-48, p. 46.

[66] Goold, Benjamin, 'How much surveillance is too much? Some thought on surveillance, democracy, and the political value of privacy', in Schartum, D.W. (ed.), Overvåkning i en rettsstat - Surveillance in a Constitutional Government, Bergen, Fagbokforlaget, 2010, pp. 38-48, p. 46.

[67] ECtHR, S. and Marper v. United Kingdom, para. 112.

[68] See for example Ericson, Richard V., and Kevin D. Haggerty, Policing the Risk Society, Oxford University Press, Oxford, 1997 and Monahan, Torin, Surveillance in the Time of Insecurity, Rutgers University Press, New Brunswick, NJ, 2010.

[69] Goold, Benjamin, 'How much surveillance is too much? Some thought on surveillance, democracy, and the political value of privacy' in Schartum, D.W. (ed.), Overvåkning i en rettsstat - Surveillance in a Constitutional Government, Bergen, Fagbokforlaget, 2010, pp. 38-48, p. 46.