DEV620_1708992aOn 4 March 2013, a number of senior judges formally responded [pdf] to the Law Commission’s Consultation Paper 209 on Contempt of Court [pdf].   The response is, as might be expected, a careful and considered document sensitive to the right of freedom of expression, in for example, expressing concerns about suggested new powers to make “take down” orders.  It is, therefore, at first sight surprising that this document should feature in the Sun newspaper on two successive days.

The “Sun” newspaper was not diverted by questions concerning “take-down orders” or trial of contempt cases on indictment.  It  focused on one paragraph on pages 4 to 5 of the document,

Do consultees agree that there should be a consistent policy adopted by police forces about whether to release information about arrestees, with appropriate safeguards?

The judge’s response, written by Lord Justice Treacy and Mr Justice Tugendhat suggested that

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

Mention is made of the case of Christopher Jefferies and the judges adopt the view of Lord Justice Leveson, quoted in Hugh Tomlinson’s piece on this blog last week

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” Leveson Report, Vol 2, Part G, chapter 4, par 2.39, p.791

The Sun was very unhappy.  In a piece on on 11 April 2013 under the title “Judges bid for secret arrests” it said that “In a draconian move, they want to BAN the Press and public from knowing who cops arrest“:.

“critics warn the plan could stop victims and witnesses coming forward. And they say sexual predators like Jimmy Savile, and politicians nicked over their expenses, could hide behind new laws”.

They quote Trevor Sterling, a lawyer who acts for victims of Savile, as saying:

“If someone like Savile’s name is not published, victims of sexual abuse would not have the confidence to come forward.”

This is a difficult to follow as the proposed new guidance would not affect the naming of Jimmy Savile at all – he was dead at the time of the revelations about his conduct.  “Politicians nicked over their expenses” could only “hide behind new laws” if they were not charged.  If there is a charge then the name is published.

The Sun was sufficiently concerned about the point to follow this article up the next day with a piece entitled “To hell with justice: Plans to keep identity of arrested suspects secret will lead to beasts escaping jail” which had the illustration at the beginning of this post and reported that

“Critics say even the DEVIL would enjoy protection under the draconian proposals”

This is said to be

It is the latest in a series of Press curbs which critics fear would create a Ministry of Truth, as outlined in George Orwell’s totalitarian state novel 1984″

These “critics” are, unfortunately not named and it is not clear whether they were contemplating a situation where the devil would be arrested and released without charge (although, presumably, this is what the Sun suspects might happen – with the Evil One probably having successfully relied on the Human Rights Act).

However, the Sun makes a serious point.  It goes on to suggest that “a series of terrifying sex monsters were nailed because victims read about their arrests before coming forward to give evidence against them”.  It is difficult to assess the cases described as it is clear from a number of them that what led victims to come forward was not reports of the arrest but reports about “the case” (that is, presumably, the charge).

In order to make the Sun’s case it would be necessary to provide examples of individuals who had been arrested, where there was no sufficient evidence to charge, but that such evidence had been provided by other victims who had read about the arrest.  But such cases could be dealt with by providing the police with discretion to release the names of the those who are suspect of serial sex offences where it is believed that more victims will come forward.  In order to achieve this aim it is not necessary to release the names of the hundreds of thousands of innocent people arrested every year.

Finally, legal commentator Joshua Rozenberg has commented on the same point in a piece entitled “Yes, suspects are sometimes innocent – but secret arrests are not the answer“.  He makes the same point that David Hencke has made in a blogpost on the subject – that if the name of a person arrested cannot be reported then there is a risk that a reporter would inadvertently publish prejudicial information:

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 point is an important one and needs to be taken into account in drawing up the Guidelines.  Nevertheless, this risk will arise only in a small number of cases – in most cases there is a short gap between arrest and charge and it is unlikely that there will be reporting about the crime in the interval.

To return to the words of the Judge’s Response [pdf], “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”.  In general, it will not be appropriate to publish the names of those arrested before charge but the position may be different in the types of case mentioned by the Sun and by David Hencke.