Leveson, “secret arrests” and the rights of suspects: a question of balance – Hugh Tomlinson QC

10 04 2013

OLYMPUS DIGITAL CAMERAThe Mail on Sunday and the Daily Telegraph are alarmed about ‘secret arrests’ – which, as usual, they blame on Lord Justice Leveson.  The complaint concerns proposed new guidelines from the Association of Chief Police Officers under which “forces will be banned from confirming the names of suspects”. The Mail calls it “a chilling new threat to the right to know” and holds out the prospect of people being swept off the streets in the manner of North Korea and Zimbabwe. The Telegraph says that critics are condemning the proposal as an attack on open justice.

Both papers link the proposal directly to Lord Justice Leveson. The Mail says: ‘Chief constables have been driven down this secretive route by a recommendation of the Leveson Inquiry, supposedly designed to protect the innocent from publicity.’ And the Telegraph says: ‘The plans follow recommendations made by Lord Justice Leveson in his report into press standards.’

Well not quite. This not a “recommendation” by Lord Justice Leveson – it not mentioned in the list of 92 recommendations which he makes.  But this is, however, a topic which is dealt with briefly in the body of the report.  The context is a discussion of “media ride alongs” (that is, taking the media on police operations).  Lord Justice Leveson quotes Andy Trotter, Chief Constable of British Transport Police and Chair of the ACPO Communications Advisory Group as saying that individuals who have been arrested should not be identified by any police force, nor the media (Leveson Report, Vol 2, Part G, para 2.36).  He notes that a similar view was expressed by the Commissioner of the Metropolitan Police, Sir Bernard Hogan-Howe.  Both mentioned the case of Christopher Jeffries.  So, Chief Constables were not “driven down this route” at all – it was their own idea.

However, this police view was one with which Lord Justice Leveson agreed. He said

“I think that 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 publicLeveson Report, Vol 2, Part G, chapter 4, par 2.39, p.791

So, the suggestion is not that arrests should be “secret” but that, in the ordinary, course, the names of suspects should not be made public.  This appears to be the position presently being considered by ACPO.

It is important to understand the present practice.  The police do not usually identify someone who they have arrested.  Rather they give general details of an arrest “which are designed to be informative but not to identify – for example ‘a 27 year old Brighton man’” (ACPO Communication Advisory Group 2010 Guidance, para 4.3). If, however, the media discover the name and seek confirmation some forces give this, others do not but may indicate if the name is incorrect (para 4.4).  If the person is charged the criminal process begins and the name and age of the person charged is then released.

The present position is obviously unsatisfactory.  At best it encourages a “media guessing game”.  At worst, it encourages police corruption. In high profile cases it is clear encouragement to police officers to make wrongful or corrupt disclosures of the identities of arrested suspects to the media.  A number of such cases are presently being investigated by Operation Elveden.

What then is the purpose of the proposed change?  It is “a threat to democracy” and an example of “secret justice”?  Neither charge has any sensible basis.

It important to remember some basic facts about arrests.  The police are entitled to arrest someone if there are “reasonable grounds to suspect” an offence has been committed.  Suspicion is a low threshold, as was said in the leading case suspicion “is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.” (Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, at 948).  “Reasonable grounds” is a low hurdle.  For example, it is common for several different people to be arrested where only one of them could have committed an offence – the others are innocent. Many suspects who are arrested are entirely innocent of any wrongdoing and are later released without charge.  They have been, in the well known phrase, “eliminated from inquiries”. In such a case, the formal legal process is never commenced.

However, a report of the fact that a person has been arrested is, potentially, extremely damaging to them.  Many members of the public will assume that “there is no smoke without fire” and that, if a person is arrested then they must have done something wrong.  The arrest may receive wide publicity, the release without charge none at all.  The fact of an arrest is “sensitive personal data” and may often disclose private information about a person.  If, for example, a person is arrested for a suspected sexual offence, the fact of the arrest will reveal private information about their sexual activity.

So the question as to whether an arrested suspect should be identified is one of balance.  On the one hand, there are the rights of the individual in the protection of their reputation and private life.  On the other, there is a public interest in openness and transparency.

How is that balance best to be struck? There is a strong argument that the position apparently being proposed by ACPO is the right one.  On this proposal the public is told that there has been an arrest and, if it turns out that there is sufficient evidence to charge the suspect, then the person is named. The rights of the individual are protected – if there is insufficient evidence to charge them, their reputation is not damaged and their private life is not interfered with by publicity.  All this is subject to a “special circumstances” exception – where the public interest requires immediate disclosure.  A name can be disclosed where this is necessary, for example, to prevent crime by assisting in the arrest of associates or encouraging witnesses to come forward.

The complaint that this is somehow similar to Zimbabwe or North Korea is absurd. The arrests are not secret as far as the person arrested is concerned. The guidelines do not prevent the suspect from publicizing his or her own arrest.  If that person wants to complain about police wrongdoing then there is nothing to prevent them.  The guidelines only concern pre-charge disclosure by the police.  The process of justice – beginning with charge – will remain open.  What will be inhibited is needless damage to the rights of innocent suspects.  This is a fair balance and one which deals with the obviously unsatisfactory position under the present system.

About these ads

Actions

Information

7 responses

10 04 2013
davidhencke

I can see your points about the status quo encouraging police corruption and damaging an individual’s reputation. But there is a big problem about NOT disclosing enough information to identify someone which could damage their right to a fair trial. I have put up a blog as I am in the middle of investigating a historic paedophile ring also subject to a complex police investigation. If I had not known the identities of the two people arrested I would have published in the Sunday media, on my blog and at exaro news information about their activities which will not come out until their trial. As I know who they are I have not. You can see my points at http://bit.ly/12CiYQV

10 04 2013
INFORRM

This is a good point and something which should be taken into account when any guidance is prepared. The rights of those who face criminal trial must also be taken into account – although I suspect that such cases are a small fraction of the 1.3 million arrests for notifiable offences each year (most of which result in a decision as to charge or no charge very quickly).

My point is that the proposed guidance is a sensible attempt to balance rights and the debate is not enhanced by referring to “secret arrests” and “people disappearing off the streets”. Of course there is a legitimate media interest in publishing details of arrests but arrested individuals also have rights to be taken into account.

Hugh Tomlinson

11 04 2013
davidhencke

Reblogged this on David Hencke and commented:
This is the alternative view by media barrister Hugh Tomlinson,QC to my piece on why APCO should tighten its guidelines on releasing the names of those arrested.I put it up for debate for those who are interested.

12 04 2013
Andy J

The words ‘secret arrests’ and the linkage to activities in N Korea and Zimbabwe implies that those arrested are held incommunicado so that if it weren’t for the good offices of the press, no-one would know where they had gone, somewhat like the ‘disappeared’ in some South American countries. However in the real world all detainees have the right to have someone informed of their whereabouts (s56 PACE), a right which may only be delayed for a reasonable period on the written authority of an officer not below the rank of Inspector, if to allow it would impede the investigation, for instance by alerting accomplices or frustrating the execution of a search warrant. Clearly the person who is informed about somebody’s arrest is entirely free to make that information known to the press if they think it is in the interests of the person being held.

13 04 2013
News: More on “secret arrests” – the Judges and the Sun | Inforrm's Blog

[...] 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 [...]

15 04 2013
Law and Media Round Up – 15 April 2013 | Inforrm's Blog

[...] Leveson, “secret arrests” and the rights of suspects: a question of balance – Hugh Tomlinson Q… [...]

24 04 2014
"Robin Lupinyo"

One element of this not considered in this blog post is the suggestion that police tactics have changed in the last decade or so, that officers are more likely to make an arrest and release someone on police bail for a lengthy period of time rather than charge them with an offence.

The natural understanding of what an arrest means is that it is the first point in the criminal process. Police believe someone is guilty of an offence. They arrest him. He is charged by the CPS, then tried, convicted and punished. This the assumption behind press reporting of arrests as well.

However, as I understand it, police officers now use the power of arrest partly as a method of gathering evidence. They have greater powers to search an arrested person’s home, to take DNA samples and to interrogate computers and mobile phones – things they can’t do to someone who is merely a suspect.

Obviously there are implications then for potential injustices unless the arrest remains secret. But ought there to be more scrutiny on the numbers of people who are arrested then released without charge? Surely an arrest is a significant issue for the person involved. Someone applying for a new job or a loan or for a visa to go on holiday might need to declare this information.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




Follow

Get every new post delivered to your Inbox.

Join 3,818 other followers

%d bloggers like this: