“No smoke without fire” – protecting the rights of pre-charge suspects

4th February 2020 Business Crime

Imagine a scenario where the police have arrested you on suspicion of an offence. It may be months or even years before a charging decision is made in relation to your case.

Ultimately, even if you are never charged, you might still have suffered serious reputational harm in the process due to being identified in media reports or on social media. Despite the legal principle of presumption of innocence, in the minds of some, “there’s no smoke without fire”.

There are currently conflicting views regarding whether or not the current law is sufficient to protect pre-charge suspects. On the one hand, reputations can be ruined when serious allegations are publicised and the suspect is not charged. On the other hand, some urge that caution must be exercised when considering restricting the freedom of the press.

We discuss the legal protections available to pre-charge suspects to help control what is published about them following their arrest.

Contempt of Court

Presently, the law of contempt prohibits publications which are prejudicial to a fair trial. It limits information which can be published about suspects in criminal proceedings either in the media or elsewhere. The key legislation is the Contempt of Court Act 1981.

Contempt includes publishing anything that creates a substantial risk of serious prejudice to active criminal proceedings.

Criminal legal proceedings can become “active” from the time of the arrest of a suspect. The rules apply to social media users, as well as professional journalists.  The offence of contempt of court can attract a custodial sentence or a fine. There have been a number of cases where national newspapers have been found in contempt of court for information published about defendants during criminal trials.

The law of contempt aims to prevent prejudice to criminal proceedings. However, it does not prevent the suspect from being named in any publications.

Privacy Law

The privacy rights of pre-charge suspects were discussed in the recent and widely publicised court case involving pop star Sir Cliff Richard.

Despite the fact that he was neither arrested nor charged, Sir Cliff was the subject of serious media scrutiny when allegations of historic child abuse were publicised. The BBC named Sir Cliff as a criminal suspect and, as part of its coverage, presented live reporting on the ground as well as aerial footage shot from a helicopter. The CPS later announced that no charges would be brought against him.

Sir Cliff subsequently sued both the BBC and South Yorkshire Police for misuse of private information as a result of the media coverage. In July 2018, the High Court awarded him compensation in the sum of £210,000 for the infringement of his privacy rights – one of the highest awards known for such claims. The Court held that Sir Cliff had a reasonable expectation of privacy in relation to the police investigation, which extended to the search of his home.

The decision faced criticism from the media as it was said that the case created new law and represented a “dramatic shift” against the ability of journalists to report on police investigations.

Anonymity (Arrested Persons) Bill

In January, the Anonymity (Arrested Persons) Bill was presented to the House of Lords.

The Bill proposes the introduction of a new criminal offence which would criminalise anyone who published information which identified a person who has been arrested for an offence without charge.  

We may, in the future, see the introduction of new legislation that will protect the identities of those arrested by the police while they are under police investigation.

Key Changes Proposed

If the Bill becomes law, new reporting restrictions will apply where a person is arrested for a criminal offence. The restrictions will continue to apply unless and until that person is charged with the offence.

If it would likely lead to members of the public identifying the arrested person as the person suspected of, or alleged to have committed, the offence, the arrested person’s name, address or likeness may not be:

  1. Published in any “publication” (including websites) available to the public in England and Wales; or
  2. Included in any “relevant programme” for reception in England and Wales.

Under the Bill, those who do publish information which identifies a pre-charge suspect contrary to the restrictions may be guilty of a criminal offence and could receive a six-month custodial sentence.

In order to publish information, the would-be publisher would first need to convince a Judge that publication was compliant with the Human Rights Act 1998; that it was in the interests of justice; or that it was otherwise in the public interest.

For example, the Bill envisages that where a judge is satisfied that publication may lead to additional complainants coming forward, or to information that assists the investigation of the offence, the judge could make a direction that all or part of the restrictions on publication do not apply.

Comment

The current College of Policing guidance on the release of an arrested person’s name before they are charged states that the police will not name those arrested or suspected of a crime save in exceptional circumstances and where there is a legitimate policing purpose to do so.

However, this does not prevent the media from obtaining that information from other sources or prevent the media publicising that information.

If the Bill becomes law, pre-charge suspects will be given an automatic legal right to anonymity and their privacy rights will be strengthened further.

It would mean that Judges will play an even greater role in deciding what the media can and cannot publish about people who are accused of crimes.

It would also act as a serious deterrent to publishing information that could lead to the revelation of an arrested person’s identity unless and until the CPS had sufficient evidence to demonstrate a realistic prospect of conviction.

JMW's Business Crime and Regulatory team advise on all aspects of criminal and regulatory work.

Equally, JMW’s Media and Reputation Management Team advise on reporting restrictions, privacy rights and anonymity in proceedings. ​​​​​​​

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Laura Wilkinson is an Associate Solicitor located in Manchesterin our Commercial LitigationMedia Law departments

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Savanna Nolan is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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