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| Yes, suspects are sometimes innocent - but secret arrests are not the answer | Yes, suspects are sometimes innocent - but secret arrests are not the answer |
| (1 day later) | |
| Senior judges have expressed support for a new system of secret arrests. The proposed blanket ban on naming suspects is supported by chief constables but opposed by the government's law reform advisers. | Senior judges have expressed support for a new system of secret arrests. The proposed blanket ban on naming suspects is supported by chief constables but opposed by the government's law reform advisers. |
| Responding to a consultation paper, the judges also suggest that suspects should be allowed to claim damages from newspapers that identify them. | Responding to a consultation paper, the judges also suggest that suspects should be allowed to claim damages from newspapers that identify them. |
| Allowing all defendants anonymity between arrest and charge, subject only to rare exceptions, would amount to a major change in the criminal justice system of England and Wales. | Allowing all defendants anonymity between arrest and charge, subject only to rare exceptions, would amount to a major change in the criminal justice system of England and Wales. |
| Such a reform is likely to be strongly challenged by news organisations. But there are signs that it is being introduced already. | Such a reform is likely to be strongly challenged by news organisations. But there are signs that it is being introduced already. |
| Support for secret arrests comes in a paper written by Lord Justice Treacy and Mr Justice Tugendhat. Though dated 4 March, it has just been released in line with judicial practice. | Support for secret arrests comes in a paper written by Lord Justice Treacy and Mr Justice Tugendhat. Though dated 4 March, it has just been released in line with judicial practice. |
| The paper reflects the views of the president of the Queen's bench division Sir John Thomas, the senior presiding judge Lord Justice Gross, the chairman of the sentencing council Lord Justice Leveson and "other senior judges". The lord chief justice, Lord Judge, is not identified as a supporter. | The paper reflects the views of the president of the Queen's bench division Sir John Thomas, the senior presiding judge Lord Justice Gross, the chairman of the sentencing council Lord Justice Leveson and "other senior judges". The lord chief justice, Lord Judge, is not identified as a supporter. |
| It was issued in response to a consultation paper on contempt of court published by the Law Commission last November. This noted the difficulty that media organisations had in finding out from the police whether or not an individual had been arrested. Once an arrest is made, a case is "active" under contempt laws and there are limits on what can be published about the suspect. | It was issued in response to a consultation paper on contempt of court published by the Law Commission last November. This noted the difficulty that media organisations had in finding out from the police whether or not an individual had been arrested. Once an arrest is made, a case is "active" under contempt laws and there are limits on what can be published about the suspect. |
| The Law Commission proposed: | The Law Commission proposed: |
that 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. | 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. /> |
| However, the senior judges believe that the default position should precisely be the opposite: | However, the senior judges believe that the default position should precisely be the opposite: |
We | We adopt the words of Lord Justice Leveson in his report [Part G, chapter 3 para 2.39]: "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 nor the public." |
| A glance at Lord Justice Leveson's report on press ethics shows this conclusion appears at the end of a section during which the judge discusses whether the police should allow reporters to accompany them on raids. It appears to be based on the views of two chief constables. | A glance at Lord Justice Leveson's report on press ethics shows this conclusion appears at the end of a section during which the judge discusses whether the police should allow reporters to accompany them on raids. It appears to be based on the views of two chief constables. |
| In support of their view that suspects should not be named, the senior judges cite the example of Christopher Jefferies, the Bristol landlord who was arrested on suspicion of murdering his tenant Joanna Yeates and then released. Police then established that Yeates had been killed by a neighbour and Jeffries recovered libel damages from newspapers. | In support of their view that suspects should not be named, the senior judges cite the example of Christopher Jefferies, the Bristol landlord who was arrested on suspicion of murdering his tenant Joanna Yeates and then released. Police then established that Yeates had been killed by a neighbour and Jeffries recovered libel damages from newspapers. |
| The judges say: | The judges say: |
The | 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. |
| They add: "It may be that the civil law should be reformed to give a remedy for the publication of prejudicial information, in addition to the law of contempt. But that is beyond the scope of this consultation." | They add: "It may be that the civil law should be reformed to give a remedy for the publication of prejudicial information, in addition to the law of contempt. But that is beyond the scope of this consultation." |
| That would allow suspects to sue newspapers for damages if anything was published about them that might damage their chances of a fair trial. It would presumably be no defence for a newspaper to prove that it had published the truth about a suspect, unlike the position in libel cases. | That would allow suspects to sue newspapers for damages if anything was published about them that might damage their chances of a fair trial. It would presumably be no defence for a newspaper to prove that it had published the truth about a suspect, unlike the position in libel cases. |
| Support for a general ban on identifying arrested people came from Andy Trotter, chief constable of British Transport Police and the lead officer on media policy for the Association of Chief Police Officers. | Support for a general ban on identifying arrested people came from Andy Trotter, chief constable of British Transport Police and the lead officer on media policy for the Association of Chief Police Officers. |
| He told the Mail on Sunday "We are suggesting that people who have been arrested should not be named and only the briefest of details should be given." | He told the Mail on Sunday "We are suggesting that people who have been arrested should not be named and only the briefest of details should be given." |
| But Professor David Ormerod, the law commissioner responsible for the contempt of court consultation, told the newspaper: "In drafting our provisional proposals, we considered freedom of expression under the Human Rights Act, which covers the press's right to report and the public's right to know. Clearly this has to be balanced with an individual's right to privacy. But it is not hard to imagine cases of clear public interest in which arrests should be reported." | But Professor David Ormerod, the law commissioner responsible for the contempt of court consultation, told the newspaper: "In drafting our provisional proposals, we considered freedom of expression under the Human Rights Act, which covers the press's right to report and the public's right to know. Clearly this has to be balanced with an individual's right to privacy. But it is not hard to imagine cases of clear public interest in which arrests should be reported." |
| Ormerod is right. How are news organisations to know if they are at risk of prejudicing a trial when they cannot be sure whether the defendant has been arrested? Already, the police have refused to identify a man in his eighties who was arrested at the end of March investigating allegations of suspected sexual abuse in the wake of Jimmy Savile. He has also not been identified by newspapers. | Ormerod is right. How are news organisations to know if they are at risk of prejudicing a trial when they cannot be sure whether the defendant has been arrested? Already, the police have refused to identify a man in his eighties who was arrested at the end of March investigating allegations of suspected sexual abuse in the wake of Jimmy Savile. He has also not been identified by newspapers. |
| The problem highlighted by the judges is that innocent people are sometimes arrested. The solution is not to confine news of arrests to the internet rumour-mill. It is for the public to understand that, sometimes, there can be smoke without fire. | The problem highlighted by the judges is that innocent people are sometimes arrested. The solution is not to confine news of arrests to the internet rumour-mill. It is for the public to understand that, sometimes, there can be smoke without fire. |