The sorry case of the flawed investigation into Sir Cliff Richard has once again brought the issue of pre charge bail and suspect anonymity into the headlines. Despite the fact the police are inevitably the source of leaks to the press the College of Policing has recently initiated a consultation on police relations with the media and propose that:
the police will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate policing purpose to do so – this would include a threat to life, the prevention or detection of crime or where the police have made a public warning about a wanted person. If names are put to the police for confirmation of an arrest the response should be “neither confirm nor deny”.
This consultation is long overdue and the proposals should be adopted. These were in fact the recommendations of the Leveson Inquiry and of the Home Affairs Select Committee after Paul Gambaccini and I gave evidence in 2014. Sadly, the Law Commission, following their consultation on contempt of court in 2013/14, did not agree and expressed the opinion that, with appropriate safeguards, the names of arrestees should generally be released. The Law commission, supported by media organisations, were concerned about the prospect of “secret justice” and achieving the correct balance between the conflicting rights of freedom of expression and rights to privacy.
The problem with the Law Commission’s approach is that this assumes the police will carry out some investigation to obtain credible evidence before arresting or interviewing a suspect and will investigate expeditiously. Unfortunately this simply does not happen. Sir Cliff Richard had the ignominy and horror of witnessing his house being searched as a BBC helicopter filmed the entire event on National TV following a police tip off. He spent 2 years awaiting a decision while the police, to try and justify their heavy-handed behaviour, regularly briefed the press that more allegations had been made and the investigation was expanding. This was unforgivable when we then learn that the CPS had the file for just a few weeks before making the decision to take no further action.
The naming of suspects pre charge has a devastating impact and causes “irremediable damage” not only to an individual’s reputation, but also to their health and ability to work. The repercussions rip through their family. Sir Cliff describes feeling like he was “going to die”. Even when there are no charges the stain of a police investigation remains.
Individuals are often arrested when little evidence exists (the threshold of reasonable grounds for suspicion is very low) and many are not ultimately charged. I disagree with the Law commissions approach. A ban on publishing a suspect’s name pre charge does not interfere with the public’s “right to know”. If there is sufficient evidence to charge, the name is then published. The public interest in having an open and transparent society and knowing the identity of an individual arrested before there is any assessment of the weight of the evidence against them (which is often poor) is outweighed by an individual and their family’s Article 8 right to private life. Not naming suspects pre charge but naming once charged strikes a fair and proportionate balance between the rights of an individual and society.
The College of Policing Consultation is welcome and will hopefully bring about a change in the way in which those who are not charged are protected.
The consultation ends on 8 July 2016.