Corker Binning partner writes about protecting the identity of arrested individuals in Criminal Law & Justice Weekly

Nicola Finnerty comments in Criminal Law & Justice Weekly on ACPO’s proposal to ban the police revealing the identities of arrested individuals.

Innocent Until Proven Guilty

Date: 1st June 2013

Nicola Finnerty supports the proposed blanket ban on naming arrested suspects

The Association of Chief Police Officers (ACPO) has proposed a blanket ban on the police revealing the identities of individuals arrested as part of a criminal investigation. This has sparked widespread controversy, with critics arguing that concealing the identity of an arrested individual is not in the public interest because it may prevent other victims or witnesses from coming forward; the Telegraph has recently stated it is “a fundamental democratic right for the public to know who the police have in custody and why”. But what about the rights of those who are vilified due to the revelation that they have been arrested when they are entirely innocent?

The proposed policy has been robustly defended by ACPO because it is intended to protect the many people who are arrested but who are innocent and have no further action taken against them. This protection is necessary because, unfortunately, many members of the public believe an arrest must mean someone has done something wrong. This is so often not the case, yet the report of an arrest can have far-reaching consequences for an individual, potentially causing irreparable damage to their reputation and so to their employment and future job prospects, their family and their standing in the community, with little or no recompense.

As ACPO acknowledges, an arrest is not indicative of guilt yet is likely (in some cases) to generate publicity, whereas there will be no publicity at all when no further action is taken. The individual and their families are then left to pick up the pieces.

A cautionary tale in support of adopting the policy is that of Chris Jefferies, who was briefly arrested on suspicion of the murder of Joanna Yeates at the beginning of 2012.

Mr Jefferies eventually received libel payments from eight newspapers, including the Sun, because they had wrongly implied he had been guilty. Subsequently Vincent Tabak was jailed for a minimum of 20 years for the murder. This illustrates how there was little attempt to distinguish between arrest and conviction, with the result being significant damage to Mr Jefferies’ reputation.

Anonymity has also been supported by Treacy LJ and Tugendhat J, who have underlined the need for caution in naming those arrested because: “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.”

The recent case of Stuart Hall has been widely reported in support of the proposition that the public interest is served if the names of those arrested are publicized. Apparently Lancashire Constabulary has said that the publicity after Mr Hall’s arrest encouraged many of his victims to come forward. This of course fails to appreciate that the current ACPO proposal is that the ban on confirming identity will cease after a person has been
charged, and so it does not preclude prosecution for other acts reported at a later stage of the proceedings.

In addition, ACPO has installed a safety feature in that a reviewing police officer may, on the basis that it is in the interests of justice to encourage victims and witnesses to come forward, decide to permit the publication of an arrested person’s name. This at the very least will ensure a degree of scrutiny and justification for releasing an arrested person’s name which does not currently apply.

Some critics have said the current system is sufficient – that is, for the police to confirm an arrested person’s sex, age and location but not their name. However, the practice varies widely from force to force with some individuals named in the press and others remaining anonymous.

Some argue that the police are using the Leveson report to covertly curtail the freedom of the press. However, the proposed policy seeks to regulate the actions of police officers, not journalists. The reporting of an individual’s arrest is still a matter for editors, the only difference being that journalists will not obtain confirmation of an individual’s arrest from police sources. Therefore responsible and accountable journalism has
nothing to fear from the Leveson report or indeed from the new ACPO proposals. It is, however, worth recognizing that Lord Leveson was concerned that the names of arrested suspects should be withheld from the public in all but “exceptional circumstances” to ensure the public is protected from abuses and defamation.

Adopting the “no names” policy can only be a fair and proportionate measure to mitigate the effects of an arrest without charge on all individuals caught up in police enquiries. It is a small adjustment to make to accommodate the changing nature and scale of UK police operations, and the safeguards already canvassed make the critics’ objections unreasonable and in many instances self-serving.

Author details

Partner, Corker Binning (nf@corkerbinning.com)