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31 July 2018 / by / in

Post – Sir Cliff – the case for pre-charge anonymity

In the aftermath of the recent award of substantial damages to Sir Cliff Richard, is there now a case for a complete ban on pre-charge publicity? This issue has been the subject of debate in recent years following the publication of the identity of a number of celebrities who were arrested for historic sexual abuse and subsequently released without charge.

The current position is that there is no ban on the police releasing the identity of suspects arrested for alleged criminal offences pending a charging decision or the completion of an investigation. The damage which may be caused to the reputation of a suspect, especially those accused of sexual offences, is obvious. The debilitating impact which this can have on careers has been the subject of heartfelt testimony by such celebrities as Paul Gambacinni, Jimmy Tarbuck, Matthew Kelly and Sir Cliff himself. It is not limited to celebrities of course as witness the catastrophic impact of the identification of Christopher Jeffries as a suspect in see for example the murder of Joanne Yeates.

The police are governed by the guidance issued by the College of Policing – Engagement and Communication – Media Relations (2017). Under Key Themes this states:

The police service has a duty to safeguard the confidentiality and integrity of the information it holds. This duty must be balanced against the duty to be open and transparent. All decisions should be underpinned by the National Decisions Model which takes account of the legal framework and places the police Code of Ethics at its heart”.

Under “Arrests, charges and judicial outcomes” the guidance tackles the issue of the naming of suspects pre-charge. It states as follows:

Police will not name those arrested or suspected of a crime save in the most exceptional circumstances where there is a legitimate purpose to do so. This position is in accordance with the Leveson Inquiry (part 1), the Information Commissioner and the Home Affairs Select Committee.

A legitimate policing purpose may include circumstances such as a threat to life, the prevention or detection of crime, or where police have made a public warning about a wanted individual”. Or …

The guidance recognises that it is possible to release information about a criminal investigation without naming the suspect. It also makes it clear that before a decision is made to release the name of a suspect it should be authorised by a chief officer and follow consultation with the CPS.

The Government had the opportunity to legislate on this issue back in 2015 following its consultation on bail reform. However, the then Home Secretary, Theresa May, resisted the temptation to do so in the wake of Leveson and the “celebrity” cases referred to above, and preferred to rely on the College of Policing Guidance.

The Government believes that there should, in general, be a right to anonymity before the point of charge, but there will be circumstances in which the public interest means that an arrested suspect should be named”.

The problem is that the College of Policing Guidance provides a somewhat opaque and ill-defined basis upon which a decision to publicise the name of a suspect might be based. What constitutes a “legitimate policing purpose” will in most instances be a highly subjective decision made by the investigating police force. The extent to which they would follow advice from the CPS is both debatable and indeed questionable. Recent publicity surrounding the complete breakdown of communication between the police and the CPS over issues of disclosure does not augur well.

If one accepts the basic principle that publicity should be the exception and not the rule, there must surely be a case for some judicial scrutiny of any decision to publish the name of a suspect. After all, the same reasoning has been applied to the scrutiny of decisions to extend bail beyond defined time limits. This was introduced as a reflection of the fact that bail involves a degree of deprivation of liberty. However, the damage that can be caused to a suspect’s reputation by premature publicity of their identity is unarguably far worse than the inconvenience of being required to surrender to a police station.

Not all suspects have the financial resources of Sir Cliff to instigate civil proceedings for breach of privacy.

In 2011 the Conservative MP and barrister, Anna Soubry, sought to introduce legislation dealing with this very issue in the form of the Anonymity (Arrested Persons) Bill. Sadly, it foundered and never got beyond its second reading. The bill sought to ban any publicity that might lead to the identification of a suspect pre-charge, save where the Crown Court directed that the reporting restrictions should be lifted to encourage other victims of the suspect to come forward.

In light of the incalculable damage that the naming of a succession of suspects in historic sexual abuse and other high profile investigations has caused, the time is surely right for full legislative rigour to be applied to the current unsatisfactory state of affairs.

Stephen Sharp

Steve heads the Business and White Collar Crime team at Bivonas Law and specialises in defending white collar crime cases. He has defended in cases brought by the Serious Fraud Office (SFO), HM Revenue and Customs, Department of Business Innovation and Skills (BIS), the Economic Crime Unit (ECU), NHS Counter-Fraud Service and the Crown Prosecution Service (CPS).

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