Detention hearing and review

After a person is charged with an offence, the court may decide that it is needed to put them under pre-trial detention, also known as remand or preventative detention. A court decision for pre-trial detention is usually grounded on reasons, including but not limited to the existence of evidence strongly suggesting that the accused is the perpetrator of the crime, or a considerable risk that they would interfere with the proceedings (for example hide or flee the country, fail to appear for trial, spoil evidence, intimidate witnesses), commit further offences or otherwise cause public disorder). The legal grounds for pre-trial detention may vary in different countries.  

Pre-trial detention restricts the right to liberty and the presumption of innocence. Therefore, it is normally considered a last resort measure and is a subject of review by the court during the course of the proceedings. The first detention hearing is usually the first court hearing of the case at all and the media interest is high. In many European countries, the media is not allowed to attend detention hearings and reviews as the investigation is ongoing. However, journalists are allowed at the premises of the court, especially in cases of public interest. Given the specifics of this pre-trial phase, particularly that some rights of the accused person are deprived in the absence of conviction, there are many risks for violation of the presumption of innocence that should be considered.  

Although the detention hearings and reviews are held in court, it is noteworthy that these hearings are part of the pre-trial proceedings. Therefore, confidentiality is the prevailing principle. It should not be mistaken with the trial phase which is public in principle. If a detention review is held during the trial, the relevant recommendations are provided in the ‘Trial phase’ section of this guidebook.

Provision of regular information to the public

You are expected to present information to the public about the detention decision. It is part of your responsibility, as a public authority, to provide regular and up-to-date information regarding the developments within a criminal process. The public should be aware of any subsequent decisions made at judicial reviews which terminate, replace (with bail or other alternatives), or extend the precautionary measure. 

The provision of information can be done via press releases, press conferences or other means of communication used by your office. The released information should be presented observing several principles that do not allow for the public or the media to disproportionately invade the private life of detainees and their families, to make pre-judgments that can eventually violate the presumption of their innocence, and deprive people from their right to a fair trial. Your office has probably designated a person to communicate with media – consult them as often as you have specific doubts.

The photograph and description of the tattoo as “macabre” by the police authority strongly implies guilt and give ground for pre-judgments which may violate the presumption of innocence.

German murder suspect found in Spain with RIP tattoo clue

Photo: National Police

Spanish police said on Sunday that they have arrested a German fugitive suspected of slitting his girlfriend’s throat and have safely recovered the couple’s 18-month-old toddler. 

Police said the man recently got a “macabre” tattoo inked on his upper arm with the name of his deceased girlfriend, her birthday as well the suspected date of her murder – 27/10/2016 – beside a cross along with the words “Thank you for everything” in Spanish.

The National Police released a photograph of the suspect with the incriminating tattoo.

Identifying a detained person

At this point, the investigation is most likely still ongoing, therefore no identifiable data should be revealed about the accused individual. Stick to the general rules when describing the detained person – use initials instead of full name, avoid exhibiting un-anonymised photos and keep in mind which data, alone or combined, might serve as identifiable depending on the context of the case. Avoid disclosing confidential materials as the evidence presented to the court as grounds for the detention. 

When reporting to the media, it is admissible to mention what is the reason for the detention – a risk for fleeing the country, a significant concern that the behaviour of the accused person may jeopardise the proper conduct of the criminal process or other.

Personal data as the full name, age, nationality and address information (a small village near Madrid) are inappropriately disclosed upon the arrest of the accused man. The article contains two photos of the accused person that were not anonymised (the fact that he was wearing a facemask as a COVID-19 measure, does not justify the dissemination of photos showing his face). It is appropriate that the time of the arrest, the offences he was charged for, and names of the detective and judge were mentioned.

Man remanded in custody over Christmas day assaults in Torrelaguna, Madrid

Photo: Alexander Wójcik (pictured) was brought before a sitting of District Court in Madrid on Thursday where evidence of arrest, charge and caution was heard

A man has been remanded in custody after he was charged with assaulting two people in north Madrid on Christmas Day.

Polish national, Alexander Wójcik, 54, with an address in Madrid, was brought before a sitting of District Court in Madrid on Thursday where evidence of arrest, charge and caution was heard arising out of the investigation into the alleged assaults on a woman in her 50s, and a man in his 20s, near Torrelaguna, on Christmas Day. 

An interpreter was in court to hear Detective Pedro De León tell Judge Martina Hernández that he charged Mr Wójcik at 3.41am on January 6 with four separate charges: assault causing harm to a woman, assault causing harm to a younger man, both at Torrelaguna near Madrid, on December 25, 2020.

Photo: Mr Wójcik (centre) sat towards the back of the courtroom, wearing a facemask, and listening to the interpreter explain what was being said.

Public reference to guilt

The imposition of prevention measures may suggest that during the investigation sufficient evidence has been gathered to assume that the suspect or accused person has committed the crime. Therefore, at this stage it is crucial to remember that detention decisions are not final convictions. Be cautious how you present the detention decision to the media and the public, and refrain from sharing comments or opinions that may convey the perception that the detainee is guilty. It is necessary to use balanced language and choose your words in a way that makes it clear that the final ruling on the case is yet to be taken by the court. Regardless of your personal belief whether someone is guilty or not, your position as a public official requires you to remain neutral in all your public statements.

Paul Gry arrested in connection with murder of Alyson Harber, authorities say

Photo: Paul Edward Gry (Wooster Police Department)

Wooster Police have arrested the boyfriend of Alyson Harber, 34, who was found dead with visible signs of assault inside a home in 13000 block of Burbank Rd, officials said. 

Her long-time boyfriend, Paul Edward Gry, 34, was taken into custody at the scene.

“This entire incident is tragically regrettable,” Wooster police Commissioner John Dwayne said. “I am appreciative for the hard work of the men and women of this police department and the fact this dangerous individual is in custody and no longer posing a threat to the citizens of Wooster.”

This media publication serves as an example of violation of the presumption of innocence. The police authorities disclosed the full name, age, and a photo of the suspect at the time of the arrest. Identifiable information about the victim, including her full name, age and home address were also inappropriately reported to the media. The disclosure of the exact location of the crime scene posed a serious risk to the further investigation. Lastly, the public statement of the police commissioner does not express any doubts as to who the perpetrator of the murder was before the case was even brought to court.

Managing information online

Online platforms such as institutional websites and social media pages can be used for providing official information about the progress of criminal proceedings. Although the regulations on online content might be looser in many countries, the online posts should comply with the applicable national rules respecting the secrecy of the pre-trial phase. Online publications should not disclose the identity of detained people by including identifiable information about them or by posting photos or videos that are properly anonymised. If you wish to upload images from a detention hearing at the pre-trial stage, it is advisable that they only show the courtroom or those involved in the case in their official capacity (for example the judge and the prosecutor). 

To media

At the pre-trial stage, the media normally have no access to procedural actions. Detention hearings and reviews are held behind closed doors and the media is not allowed to attend (unless national legislation provides otherwise).

Identifying the detained person

Although the media is usually not allowed in the courtroom during detention hearings and reviews at the pre-trial stage, journalists can be present at the court premises or in front of the building. In cases of public interest, you may wish to obtain more information about the accused person, especially if the court have decided to put them in custody. At this point, the accused person or the suspect should remain anonymous, meaning that no photos or videos revealing their identity should be published or broadcasted. The disclosure of other facts that can disclose the identity of the person, alone or combined together (name, age, ethnicity, gender, place of residence, occupation, etc.), should also be avoided.

The disclosed information regarding the age of the suspects, as well as their area of residence and their criminal record, may be sufficient for the identification of the suspects. The information about their criminal record furthermore strengthens the impression of guilt.

They are suspected of the rape

Man, 24 years old, from Gottsunda. Charged with aggravated rape.

Sentenced in April 2017 to eight months in prison for drug offenses. Continued to commit crimes and was sentenced again in May to another four months in prison. In 2013, he was sentenced to one year in prison for, among other things, the smuggling of drugs. 2012 for kidnapping. In 2009, at the age of 16, he was sentenced to youth service for sexual exploitation of children. Occurs on a total of 13 times in the criminal record, mainly for drug offences.

Male 19 years old, from Farsta. Charged with aggravated rape.

Was 17 years old at the time of the crime. According to a statement from the social services, it has not been possible to break his criminal behaviour and drug abuse, despite extensive efforts. During his teens, the man was taken into care and placed in several different treatment homes and family homes. Occurs a total of five times in the criminal record, all for minor drug offenses. Last convicted in May 2017.

Man 29 years, from Årsta. Charged with aiding and abetting aggravated rape.

Last sentenced in July 2017 to three years and six months in prison for a serious drug offense. During a search of his home in Årsta, the police found 200 grams of cocaine. The verdict has been appealed.

Images, videos and interviews

Detainees are often led from one part of the court to another with handcuffs and escorted by police officers or security guards. The visual presentation of individuals with handcuffs affects the way they are perceived by the public. It creates a negative image of ‘guilty of the crime’ that in turn undermines the presumption of innocence from the public perspective. Avoid publishing photos of arrested people that project a humiliating and disgraceful image of them. 

You may wish to obtain first-hand information and present the viewpoint of the defence. In many countries, the legislation allows journalists to meet with accused persons who are detained in custody. Usually, such meetings can take place only with the permission of the competent judicial authority – the prosecutor or the judge. If you wish to interview or photograph detainees you should also obtain their consent, preferably expressed in writing. During the interview, avoid using judgmental statements, accusatory and provoking questions that may lead to self-incrimination of the person.

This is how the suspects of the murder in the summer cottage live in custody

The article provides a description of how the two detainees, a man and a woman, live in custody. It includes two anonymised pictures: one showing the woman is led out of the courtroom with her face covered by a veil, and the other showing the man sitting in the courtroom. In both pictures the suspects are escorted by prison guards.

The photographs taken in the court room showing the suspects escorted by guards implicate their guilt. This perception is further strengthened by the series of pictures taken from the crime scene added to the same article.

Detainees from vulnerable groups

If the detained person belongs to a vulnerable group (such as migrants, persons from an ethnic, religious or racial minority, LGBTI persons, persons with disabilities, etc.), the journalists covering the proceedings should be extra cautious. In many societies these people are marginalised and subject to negative stereotypes. Criminal proceedings against such persons may lead to strong public reactions and give rise to negative attitudes towards the whole group they belong to. As a rule, the media should not disseminate information that can lead to hatred and discrimination in the society. When reporting on the case, you should avoid emphasising personal characteristics that are grounds for discrimination, especially if they are not directly linked to the committed crime. The public perceptions of certain groups can be affected if criminal cases against their representatives are overexposed. This can lead to stigmatisation and marginalisation of the whole group, which can have particularly negative consequences in the communities, in which its members live.

The headline and information in the article may contribute to hatred and the spread of discrimination in the society towards the ethnic group in question. In this case, the ethnicity of the suspect is irrelevant in relation to the committed crime and should subsequently have been kept non-disclosed.

Afghan migrant locked away for attempted rape of a 4-year old girl

On the night of November 17-18, in a hostel for asylum seekers in Chasse-sur-Rhône, Isère, a man allegedly attempted to rape a 4-year-old girl.

Pre-judgments and biased news reports

The fact that a person is subjected to a coercive measure such as detention may lead to premature judgments and unjustified conclusions about their guilt. Always consider the presumption of innocence when you think about the headlines and the content of your articles even if that would make them less attractive for the audience.

The killer of the 7-year-old girl from Voden remanded in custody

The court has approved the request of the Jambol District Prosecutor’s Office for the imposition of detention against T.M., accused for the crimes he committed – causing the death of a minor child in a particularly painful manner and attempted rape.

On 5 May 2006, the 15-year-old T.M. killed his 7-year-old cousin and attempted to rape her in a house located in the village Voden, Jambol district. 

The Trial Chamber held that at this stage of the pre-trial proceedings there was a reasonable assumption that the accused committed the crimes and there was a real risk that the accused would abscond or commit another crime.

The information about the suspect’s initials and age is identifiable data and its publication is inadmissible as it can lead to the identification of the accused child, especially taken together with the information about the village and the suspect’s family connection to the victim. Given that the village is small (around 340 inhabitants), it is highly probable that the community can easily recognise the arrested child. The article is notably conveying the perception of guilt. It includes a picture of the detainee, although anonymised (the person’s face is blurred) shows the accused child in handcuffs and surrounded by police officers. Phrases like “accused for the crimes he committed”, and “the 15-year-old T.M. killed” are violating the presumption of innocence, because the article is published at the pre-trial stage when only a detention decision, not a conviction, has been issued by the court.

Detained children

Extra caution must be taken when the suspect or accused person is a child. Publication of information that may easily lead to a child’s identification must be avoided. This includes, among other things, information about the child’s parents or guardians, their home address or their school.