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05 August 2020

Naming suspects in criminal investigations – the case of the MP and sexual offence allegations

7 mins

Over the weekend, The Sunday Times reported that a Conservative MP and former minister was arrested on Saturday following a complaint by a former female parliamentary employee.

The MP in question is reported to be ‘A man in his 50s’. The complaint concerns allegations of rape, sexual assault and coercive control on four occasions between July 2019 and January this year, including claims that the attacks led to hospital treatment.

The Metropolitan police have said they are investigating the complaint and the MP has now been released on bail to return on a date in mid-August.

Opposition MPs have called for the former minister to have the whip removed. In a previous incident Charles Elphicke, the Member of Parliament for Dover (2010-2019) was reported as having been suspended by the Conservative Party after serious allegations were made to the police. While he had the Conservative whip reinstated prior to a confidence vote in Theresa May in December 2018, the whip was withdrawn again in July 2019 after he was charged with three counts of sexual assault against two women. He did not stand for re-election in the 2019 general election and was succeeded by his wife, Natalie Elphicke. On 30 July 2020, Mr Elphicke was found guilty on three counts of sexual assault against two women.

Conservative Party officials have said they will only consider removing the whip from the MP in question at the conclusion of the policy inquiry. Suspending the MP will inevitably confirm his identity, although there may well be steps available to the party short of suspension, including ensuring that employees are protected from any risk.

The MP and former minister has not been named by the media in the extensive reporting over the weekend. Recent cases have concerned that there is a reasonable expectation of privacy for suspects in a police investigation, and that publication of identities could well be a misuse of their private information. This is an aspect of privacy law that has rapidly developed in the last few years.  Following the Leveson Inquiry in which the practices of the police in releasing details of investigations to the press were examined, Lord Justice Leveson’s  report into the culture, practices and ethics of the press (published 29 November 2012), recommended 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 public.” (See Volume 2, G2.39).  The question of whether the fact of an arrest of a person can be subject to a reasonable expectation of privacy was then considered by the Court  in Hannon v News Group Newspapers [2014] EWHC 1580 (Ch) at [96] and [101] and in ERY v Associated Newspapers [2016] EWHC 2760 (QB) at [55] to [68]. In Hannon,  Mr Justice Mann found that press did not have an absolute right to have, and to publish, the fact of an arrest, and its circumstances [at 96]. Moreover the question of the confidentiality or privacy of an arrest is likely to be a fact sensitive point [at 99]. In ERY, Mr Justice Nicol observed that ‘[i]f the Claimant has a reasonable expectation of privacy in the fact that he has been interviewed under caution, I struggle to see why he does not also have a reasonable expectation of privacy in the information that he is being investigated by the police[at 65].

The position was clarified in Sir Cliff Richard v British Broadcasting Corporation [2018] EMLR 26, where Mr Justice Mann held that a suspect has a reasonable expectation of privacy in relation to a police investigation, including a police search of the suspect’s premises [at 248], although such an expectation may be displaced by factors such as a police decision to release information for legitimate operational concerns or for reasons of public safety [at 251]. More recently, the Court of Appeal affirmed the position in ZXC v Bloomberg LP [2020] EWCA Civ 611 that there exists ‘a reasonable and objectively founded expectation of privacy’ for any suspect under investigation by an organ of the state [at 82]. Additionally, the expectation of privacy exists for almost all crimes, as ‘to be suspected of a crime is damaging whatever the nature of the crime’, (although the Court of Appeal accepted there may be some cases where the reasonable expectation is significantly reduced due to the public nature of the activity e.g. rioting or election fraud) [at 84].  A question arises whether a Member of Parliament and a former minister enjoys this right to privacy given the public nature of their role and, based on the facts reported, the alleged incidents took place while the complainant was employed to work in Parliament. Ultimately, whether the reasonable expectation arises will always be dependent on the facts sensitive to the case as observed by Mr Justice Nicklin in the initial judgment [ZXC v Bloomberg LP (EWHC 970 (QB), [at 124]].

As it stands, the Metropolitan police have not published the identity of the individual MP and have only provided brief comments and statements to journalists. The police’s actions adhere to current guidance issued by the College of Policing, which states that “suspects should not be identified to the media prior to the point of charge except where justified by clear circumstances e.g. threat to life, the prevention or detection of crime or a matter of public interest and confidence.”

The development of the law of privacy concerning police investigations and the naming of suspects appears to conform to the views of the public. In a poll conducted by YouGov in 2018, 83% of respondents held the view that a person, who had been arrested for questioning about a crime but had not been charged, should be entitled to privacy.

It has been claimed that Media Lawyers fear the recent ruling in ZXC v Bloomberg LP could restrict the reporting of crime. This is contrary to the views of the public, experts and the Court which have all now recognised the importance of protecting privacy rights at the early, pre-charge stage of police investigations, and there is of course nothing to prevent examination of police behaviour or the conduct of the criminal process without identifying the suspect.  However, there may be another reason for not naming the individual in question. It should be noted that the complainant has also not been named. Section 1 of the Sexual Offences (Amendment) Act 1992 provides that complainants in sexual offence cases are entitled to lifelong anonymity in the media (although they can waive this right) and should not be identified in articles or broadcast reports. Publication of the name of the MP might well risk identifying the complainant in breach of the Act.

Social media is awash with discussion of the identity of the Conservative MP in question. Those who have speculated about the identity of the alleged assailant could also face the  threat of a libel claim by anyone alleged to have committed these serious offences. Publishers should also take care to avoid criminal liability for contempt if they publish anything to create a substantial risk of serious prejudice to criminal proceedings.

Reporting on high profile people arrested for sexual offences can be a dangerous business – the key advice for publishers is to ensure a proper balance between the public interest in a transparent criminal justice system, the privacy and reputational rights of the complainant and the suspect, and the integrity of the criminal process.  Each of these rights are protected by law and the guidance on achieving the correct balance is not difficult for professional publishers.  The real risk is for social media or other online publishers without the benefit of legal advice who enter a minefield when reporting on investigations into sexual offences.

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