Investigative ethics: when media leaks put justice and the presumption of innocence at risk

365 ALTERAM analysis

Professional duty begins before the courtroom

Deontological practice means acting according to professional duties even when publicity, institutional pressure or an attractive theory points elsewhere. In international criminal cases, those duties must shape evidence collection, interpretation, confidentiality and public communication. A suspect's reputation and ability to defend a case can suffer long before the first witness gives evidence in court.

Our position is clear: an investigation deserves confidence when it actively tests its own assumptions. Investigators must pursue material that supports an allegation and material that may contradict it. Public confidence cannot be built sustainably by presenting an incomplete file as a settled verdict.

Public record

A judicial warning against official declarations of guilt

In Allenet de Ribemont v. France, decided on 10 February 1995, the European Court of Human Rights examined statements made at a press conference following the applicant's arrest. Senior police officers, speaking in the presence and under the authority of the Interior Minister, identified him without qualification as an instigator of a murder. The Court found a violation of the presumption of innocence under Article 6(2). [1]

The Court recognised that authorities may inform the public about ongoing investigations, but must exercise appropriate caution. It considered the statements a declaration of guilt that encouraged public belief in guilt and prejudged judicial assessment. This was a case about official statements; it does not establish who was responsible for any unrelated leak. [1]

At the International Criminal Court, Article 54(1)(a) of the Rome Statute expressly requires the Prosecutor to investigate incriminating and exonerating circumstances equally. Article 54(3)(f) also addresses measures protecting confidentiality, persons and evidence. These provisions govern the ICC framework; domestic systems have their own applicable rules. [2]

365 ALTERAM analysis

Exonerating evidence needs an investigative plan

A balanced file requires more than attaching a denial to a completed prosecution narrative. Record each material allegation, the evidence supporting it, the evidence against it, competing explanations and unresolved questions. Preserve original material and document why a lead was pursued or rejected. An absence of testing must never be presented as confirmation.

Across borders, translation, time zones, database exports and differing procedural terminology can change the apparent meaning of a record. Compare original communications with translated extracts, identify missing context and reconstruct who actually controlled a device, account or transaction. Findings that strengthen the allegation must remain in an independent report alongside findings that weaken it.

365 ALTERAM analysis

Why unauthorised disclosure can damage the investigation itself

Where police or prosecution personnel disclose protected material without authorisation, the potential harm extends beyond embarrassment. Selective extracts can expose witnesses, reveal investigative steps and circulate allegations without the context needed to assess them. Witnesses may encounter the public narrative before giving an independent account. These are risks requiring examination in the particular case, rather than assumed effects of every publication.

For the suspect, a dramatic accusation can travel internationally while the qualifications remain buried in the file. Employment, commercial relationships and family life may be affected before responsibility has been adjudicated. The defence may face pressure to answer public allegations while lacking access to the underlying material or being constrained from discussing it.

Confidentiality rules differ between jurisdictions. Authorised factual briefings, public hearings, lawful journalism and protected public-interest disclosures require their own assessment. An uncomfortable article does not prove misconduct by an official. Equally, calling a disclosure an informal briefing cannot excuse a demonstrated breach of professional duties.

365 ALTERAM analysis

An accountable response, supported by evidence

Institutions should control access to sensitive files, retain auditable access and disclosure records, designate authorised spokespeople and distinguish suspicion from established fact. Credible allegations of improper disclosure warrant an impartial examination. Responsibility must be established through evidence, with appropriate protections for lawful reporting and journalistic sources.

For an independent review, preserve the publication, its timing, the relevant official statements and the documents available through lawful channels. Compare the published claims with the full evidential context. Record possible contamination of witness accounts and concrete consequences separately from speculation. Counsel can then assess the available procedural, disciplinary or other remedies; a breach does not automatically invalidate every item of evidence.

365 ALTERAM supports defence teams by testing competing hypotheses and reconstructing the evidential record. We apply the same discipline to our own work: secure handling, transparent methods and conclusions bounded by the material. Justice requires the courage to examine the other side and the restraint to let evidence reach a court before accusations become public verdicts.