Friday, 3 May 2013

Naming of suspects ~ a topical debate

Should arrested persons (suspects) be named by the Police?  Public knowledge of who is under investigation can sometimes assist either the police or the suspect.  Witnesses may come forward or individuals may provide useful information to the police. However, the automatic naming of those under investigation - especially in cases of very serious criminality or where the offence is of a type attracting particular condemnation in the community - could cause irreparable damage to reputation where, for example, the arrest turns out to be unfoundedAt the heart of the matter are the rights to a fair trial (Article 6);  respect for private and family life (Article 8) and freedom of expression (Article 10).



The ACPO view:

On 2nd May, the Association of Chief Police Officers issued a media release  setting out their position.  ACPO advises police forces to name those who have been charged but names of those arrested are only released, prior to charge, if it is considered necessary for the prevention or detection of crime or if there is a serious public interest.  The media release states that new guidance is being developed with a view to avoiding inconsistencies where some police forces confirm details of an arrested individual if journalists claim to have information from other sources.

Media view:
ise forces, working with the CPS, to name those who have been charged
ACPO lead on communications, Chief Constable Andy Trotter, said: “We advise forces, working with the CPS, to name those who have been charged and that position will not change.
“When an individual has been arrested our current guidance is not to name them and we will only release the name for the prevention or detection of crime, or if there is a serious public interest.
“ACPO is working on new guidance to provide clear direction to avoid inconsistencies where some police forces confirm details of an arrested individual if journalists have gathered the information from other sources.
“This does not affect what media themselves choose to publish.”
naming
02 May 2013


ACPO position on naming people who have been charged

We advise forces, working with the CPS, to name those who have been charged
ACPO lead on communications, Chief Constable Andy Trotter, said: “We advise forces, working with the CPS, to name those who have been charged and that position will not change.
“When an individual has been arrested our current guidance is not to name them and we will only release the name for the prevention or detection of crime, or if there is a serious public interest.
“ACPO is working on new guidance to provide clear direction to avoid inconsistencies where some police forces confirm details of an arrested individual if journalists have gathered the information from other sources.
“This does not affect what media themselves choose to publish.”
02 May 2013


ACPO position on naming people who have been charged

We advise forces, working with the CPS, to name those who have been charged
ACPO lead on communications, Chief Constable Andy Trotter, said: “We advise forces, working with the CPS, to name those who have been charged and that position will not change.
“When an individual has been arrested our current guidance is not to name them and we will only release the name for the prevention or detection of crime, or if there is a serious public interest.
“ACPO is working on new guidance to provide clear direction to avoid inconsistencies where some police forces confirm details of an arrested individual if journalists have gathered the information from other sources.
“This does not affect what media themselves choose to publish.”

Bob Satchwell of the Society of Editors has claimed that suspects should be named - Hall case shows suspects should be named says SoE boss.  Satchwell argues that naming Stuart Hall resulted in other victims of Hall's sexual offending coming forward.  In The Guardian 10th April  Joshua Rozenberg argues that secret arrests are not the answer.   As Rozenberg points out, a fair trial is protected by reporting restrictions applicable from the time of arrest of a suspect.  Breach of reporting restrictions can be a contempt of court.  How would news organisations reporting on crime know if they are at risk of prejudicing a trial when they cannot be sure whether the defendant has been arrested?

Further discussion is at Press Gazette 29th April 2013 - ACPO 'secret arrests' proposal is bid to end 'bizarre parlour game'

Leveson view:

The Leveson Report (Volume 2 Chapter 4) discussed police and media interaction.  In the context of media being present during police operations, Leveson wrote (Vol 2 Ch 4 para 3.3):


"Overall I would endorse the general views of the Commissioner, Bernard Hogan-Howe, and Chief Constable Andrew Trotter, of the British Transport Police, on this issue. Police forces  must weigh very carefully the public interest considerations of taking the media on police operations against the rights of the individuals who are the subject of such an operation. Forces must also have directly in mind a consideration of any potential and consequential impact on the victims in such cases. More generally, I think that the current guidance in this area needs to be strengthened. For example, I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press or the public: these details are not routinely announced by way of press release; that the press were present at the arrest should make no difference."

In essence, Leveson supports a stronger set of guidelines to be applied by the police.  He refers to 'exceptional and clearly defined circumstances' when the naming of suspects would be acceptable.  Obviously, that begs the questions: what is 'exceptional'; ' in what circumstances.'

Views of some barristers:

Maura McGowan QC (Chair of the Bar Council) has suggested that those accused of sexual offences should not be named even after charge because such cases carry 'such a stigma' - see 'Lawyers at war over calls to give rape accused anonymity.'  Other lawyers, such as John Cooper QC, have argued that sexual offences ought not to be a special case.

The Law Commission view:

In Consultation Paper 209 (Contempt of Court) the Law Commission states (para 2.20):

' .. we believe that further reforms can be introduced to ensure the fair application of the [Contempt of Court Act 1981] and to ensure greater certainty and consistency in its application. We propose that the Home Office request that the Association of Chief Police Officers issue guidance, for dissemination to police forces, which would encourage the police to adopt consistent decision-making about whether to release information about arrestees following a request from the media to identify the arrestee. We consider that such policy should establish that, generally, the names of arrestees will be released but that appropriate safeguards will need to be put in place to ensure that some names are withheld, for example, where it would lead to the unlawful identification of a complainant, where the arrestee is a youth or where an ongoing investigation may be hampered. We consider that such safeguards should be widely defined given that once a name is released, it may not be possible to retract it.'

The Commission asks Question 6.3 - 'Do consultees agree that there should be a consistent policy adopted by police forces about whether to release information about arrestees, with appropriate safeguards?'

So, for the Law Commission, the emphasis is on naming suspects subject to defined exceptions.

The judiciary view:

In a response to the consultation, Lord Justice Treacy and Tugendhat J have come down in favour of not naming suspects between arrest and charge.  At para. 5 of their response they offer their answer to Question 6.3 in the consultation:

A decision by the police to publish the name of a person arrested must be made after consideration of the rights of such persons, including their rights under ECHR Art 8, on a case by case basis. The police arrest many people who are never charged. If there were a policy that the police should consistently publish the fact that a person has been arrested, in many cases that information would attract substantial publicity, causing irremediable damage to the person’s reputation. Even if the fact that the person was not charged were subsequently published, that would not receive the same publicity, and would not prevent subsequent internet searches disclosing that the person had been arrested. See eg HM Attorney-General v MGN Ltd [2012] 1 WLR 2408; [2011] EWHC 2074 (Admin) (the case of Christopher Jefferies, who was arrested on suspicion of the murder of his tenant).'  Treacy LJ and Tugendhat J then go on to adopt the statement in the Leveson report which I have cited above.

The judicial response is therefore against the naming suspects though a decision to do so can be made on a case by case basis.

Information Commissioner view:

See the response of the Information Commissioner to the consultation.  The Commissioner indicates that automatic naming of suspects will raise human rights concerns.

Teachers - already enjoy special protection:

Parliament has already provided for teachers to have protection in specified situationsAllegations against teachers ~ a remarkable restriction

In that post it was noted:

The "mischief" with which the section is intended to address is that sometimes false allegations (e.g. of assaulting a pupil) have been made against teachers with consequential devastating impact on their careers and lives.   Will this legislation create a new trend toward protection of individuals once an allegation involving criminality is made against them?   For instance, the idea of giving anonymity to men accused of rape has been argued from time to time and a plan to grant to such anonymity was abandoned by the government - BBC July 2010.

Parliament's view:

Parliament has addressed the question of protection for teachers (above) and has rejected anonymity for those accused of certain sexual offences.  The present discussion appears to be taking place entirely outside Parliament and one is left with the feeling that the matter is being allowed to drift into a situation in which suspects are only exceptionally named.  Perhaps the time is due for Parliament to apply itself to this vitally important matter.

Other links:

Media Law - identification of suspects.

Telegraph 29th July 2011 - Chris Jefferies wins libel payout  - "The retired schoolmaster was not at London's High Court for the settlement of his actions against the publishers of the Sun, the Daily Mirror, the Sunday Mirror, the Daily Mail, the Daily Record, the Daily Express, the Daily Star and the Scotsman."   Chris Jefferies was arrested in connection with the Jo Yeates murder in Bristol and suffered some appalling media reporting - post of 24th January 2011

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