Anonymity (Arrested Persons) Bill [HL]
Tuesday 4th July 2017
(7 years, 5 months ago)
Lords ChamberRead Full debate Anonymity (Arrested Persons) Bill [HL] 2017-19 Read Hansard Text
Anonymity (Arrested Persons) Bill [HL]
Friday 1st March 2019
(5 years, 9 months ago)
Lords ChamberRead Full debate Anonymity (Arrested Persons) Bill [HL] 2017-19 Read Hansard Text Read Debate Ministerial Extracts
Lord Paddick (LD)
My Lords, before I start, I pay tribute to the Minister, the noble Baroness, Lady Williams of Trafford, for her stamina and agility, this being the third Bill this week that she has fronted on behalf of the Government.
There has recently been a series of cases where historic sexual offence allegations have received extensive coverage in the media but have not led to any charges, ruining reputations. Although these have involved high-profile individuals, other cases have ruined the reputations of ordinary people locally when criminal allegations have been made public, even when the Crown Prosecution Service has taken no further action. The Bill would make it unlawful for the identity of a person arrested to be published unless and until either they were charged with or summonsed for an offence, or a judge agreed that it was in the interests of justice or in the public interest to do so or that it was required in order to comply with human rights. It would apply to all criminal offences and not just those of a sexual nature.
This is a very limited Bill, covering only those people arrested by the police, but being arrested by the police lends credence to allegations. Members of the public, encouraged by the press and the media, form the impression that there is no smoke without fire if the police go as far as arresting an individual. There is a wider debate to be had about whether a police raid on someone’s home, for example, creates a similar presumption of guilt in the minds of the public, but that is for another day. In the same way that the laws of sub judice apply only after charge or summons, this legislation applies only after someone has been arrested.
Similarly, the Bill would not cover allegations of a sexual nature made after someone’s death. Although the impact of such allegations can be devastating for the family of the deceased, impacting in a similar way to allegations resulting in someone being arrested by the police, they are outside the scope of this Bill. However, we have to face the reality—that, in the eyes of the public, people are no longer considered to be innocent until proven guilty by a court.
I am very grateful to Anna Soubry, Member of Parliament for Broxtowe, for allowing me to use her Bill, which she introduced as a Private Member’s Bill in the other place in June 2010. I am also very grateful to Nicole Winchester for her excellent House of Lords Library briefing on the Bill, which I will rely on heavily in my comments to the House today. The only exception that I take to the briefing is that Ms Winchester says that the Bill is similar to that put forward by Anna Soubry in 2010. In fact, it is exactly the same.
In essence, it comes down to this. The College of Policing guidance about naming people on arrest says:
“Police will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate … purpose to do so”.
However, the press and the media will name those arrested or suspected of crime. They are not bound by the College of Policing guidance, and recent high-profile cases prove that the legislative framework is not sufficient.
Clause 1 would prohibit the publication or broadcast of the name, address and any still or moving picture of an arrested person if such information could lead members of the public to identify the individual as the person suspected of committing the offence in question. Subsection (2) sets out that these restrictions would remain in place unless and until the individual was charged with the offence for which they were arrested.
Clause 2 proposes that a Crown Court judge would have the power to direct that the reporting restrictions set out in Clause 1 would not apply in individual cases, either in their entirety or in relation to specified matters and time periods only. Under the clause, this direction could be made by a judge where it is required to comply with the Human Rights Act 1998, in the interests of justice or otherwise in the public interest. With regard to what is considered in the interests of justice, Clause 2(2) provides a non-exhaustive list of examples where it may be pertinent for a judge to make such a direction.
Lord Campbell-Savours (Lab)
I am just trying to be helpful. Clause 2(1)(b) says,
“in the interests of justice”,
but Clause 2(2)(a) says,
“it may lead to additional complainants coming forward”.
Is that not the problem at the moment? Does this legislation deal with that central problem?
Lord Paddick
My Lords, the way that this legislation deals with that issue is that a Crown Court judge would have to make that decision. It is no longer left to the discretion of the police or indeed the media that those details should be placed into the public domain. As the noble Lord has said, examples are where it may lead to additional complainants coming forward, where it could lead to information that assists the investigation, or where it could lead to information that assists the arrested person.
Clause 2(3) sets out who would be able to apply for such a direction from the judge or ask for it to be reviewed. That includes the court itself, the person who has been arrested, a chief constable, a prosecuting authority or any other person who is considered by the judge to have sufficient interest. Clause 2(4) would mean that if a joint application was made by the arrested person and the chief constable or prosecuting authority, the court would have to make the direction.
Clause 3 would it make it a summary offence to contravene the reporting restrictions set out in Clause 1. It also sets out the different methods of reporting and who would be responsible for any offences. For example, in the case of a newspaper the proprietor, editor and publisher would be responsible. For a broadcaster, any body corporate engaged in providing the service in which the programme was included, and any person with functions corresponding to those of an editor of a newspaper, would be liable. In addition, Clause 3(2) states that the Director of Public Prosecutions or the director of the Serious Fraud Office would need to give consent for proceedings under Clause 3 to begin.
Clause 4 sets out a defence that would be available to those who breach Clause 1, stating that if those charged under Clause 3 were not aware, and neither suspected nor had reason to suspect that the publication or programme in question was of or included the prohibited matter in question, they would not be able to be prosecuted under the Bill.
Clause 5 outlines that the penalties available would be a prison term not exceeding six months, a fine not exceeding the statutory maximum, or both. If an offence is committed by a body corporate, Clause 6 would apply. The clause sets out that if the offence is proved to have been committed with the consent or connivance of a senior officer of the body corporate, or a person purporting to act in such a capacity, then both that individual and the body corporate would be guilty of the offence and liable to be proceeded against. Clauses 7, 8 and 9 relate to interpretation, the making of orders and miscellaneous matters such as territorial extent, with the Bill applying to England and Wales only.
It is claimed that not publicising the names of arrested people would go against the principles of open justice. The Bill deals with that argument by allowing the accused, his lawyer, the police or anyone else with an interest in the case to make application to a Crown Court judge to lift anonymity. The John Worboys case is often cited as an example of where police released information that resulted in 85 further victims coming forward. In cases such as Worboys, where it appears likely that there may be further victims, a court could give permission for the details to be released.
Another aspect of open justice is to counter arbitrary actions by the state. Once someone has been arrested, save in exceptional circumstances, they have the right to have a friend or relative informed and be represented by a lawyer. The increased chances of people being effectively kidnapped by the state and disappearing as a result of the Bill still remain diminishingly small.
It should also be noted that anonymity is protected only until the point of charge. Once the Crown Prosecution Service or the police have decided to charge someone, or to issue a summons for them to appear before a court, the right to anonymity ceases in the interests of open justice. The court process, the heart of an open justice system, would remain open.
There are already exemptions to open justice—for example, where the details of the victim of an allegation of a sexual offence cannot be published or broadcast. There have been cases where alleged victims have engaged in consensual sexual activity but have subsequently claimed that they did not consent, and it is only when their identity became known that this pattern of behaviour has come to light. It is acknowledged even here that there are risks, but they are necessary and proportionate.
In the overwhelming majority of cases, sexual offence victim anonymity is necessary and effective, not because College of Policing guidelines prohibit the naming of sexual offence victims but because it is a criminal offence to identify the victim. Similar arguments apply to pre-charge anonymity: there may, in a limited number of cases, be a risk, but overall the effect of pre-charge anonymity is only positive.
Some would like anonymity to go further, until the person is convicted, particularly in sexual offence cases because of the stigma attached to such allegations, but we have resisted such calls in the interests of open and transparent justice. The difference between publication of the details of the accused at arrest and at charge is significant. In order to justify an arrest, the police have to have only reasonable cause to suspect that an offence is being, may have been or may be about to be committed—a very low bar. Before someone is charged with an offence, however, the Crown Prosecution Service must be convinced that there is more than a 50% chance of conviction and that it is in the public interest to prosecute the individual. While individuals remain innocent in the eyes of the law until convicted, pre-charge anonymity provides a balance between the rights of the individual and the right to free speech and open justice.
The devastating impact of being wrongly accused and having this information published and broadcast usually involves high-profile individuals, such as Lord Brittan, Paul Gambaccini and Sir Cliff Richard. In the latter case, Cliff Richard pursued a privacy action against the BBC and South Yorkshire Police, but this required over £1 million in up-front costs that would have been forfeited if the case had been lost, a course rarely open to those of limited means.
This type of “trial by media” can also apply to previously unknown individuals, such as Christopher Jefferies, who was falsely accused of murdering Joanna Yeates in 2010. I have also been told of a local garage owner whose business was ruined over false allegations that he was turning back the odometers of the cars he was selling, and of the suicide of a local teacher who was wrongly accused of a sexual offence. This Bill is not about protecting the famous but protecting all those falsely accused.
Despite the efforts of the police and the Government to prevent this, despite all the furore over Operation Yewtree and Operation Midland, and the Leveson inquiry, it is still happening. In December, a couple arrested over the drone chaos at Gatwick Airport had their identities published in the press and broadcast by the media. They said they felt completely violated. The couple were arrested but later released without charge. They said their privacy and identity had been completely exposed after being named in the media and having had their home searched. They said:
“We are deeply distressed, as are our family and friends, and we are currently receiving medical care. The way we were initially perceived was disgusting”.
The current situation can be summed up by the words of Sir Richard Henriques, a former Justice of the High Court in England and Wales, in An Independent Review of the Metropolitan Police Service’s Handling of Non-recent Sexual Offence Investigations Alleged against Persons of Public Prominence. I quote:
“I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer. Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters. Those consequences were avoidable by protecting anonymity. Nobody is safe from false accusation and damaging exposure under present arrangements. A reputation built on a lifetime of public service or popular entertainment can be extinguished in an instant. I sincerely believe that statutory protection of anonymity pre-charge is essential in a fair system”.
He does not say that statutory protection pre-charge is unnecessary, but that the Government are unlikely to protect the anonymity of suspects pre-charge because it would enrage the popular press. Now is the chance for the Government to prove Sir Richard Henriques wrong. I beg to move.
Lord Campbell-Savours
My Lords, I will speak very briefly in the gap. After that excellent contribution by my noble friend, it would be churlish of me not to welcome this legislation, which will clearly improve the current position.
I go back to my concern. As I understand it, the way this will work is that the judge will decide, on the basis of representations, which could include that publication,
“may lead to additional complainants coming forward”,
which the police might argue might assist in the investigation of the offence. But in those circumstances, the judge might well be convinced that that is the case and that an investigation would be helped. I am uneasy about that because it might well be that a lot of strong arguments will be put that the judge finds convincing that in principle then undermine the thrust of the legislation.
My noble friend referred to the destruction of reputation, which I was going to raise, but there is no need for me to repeat what he said. He named the individuals, and there are many more, who had their reputations destroyed internationally as a result of the way the law works at the moment. But I want to turn to how IICSA operates. While it is not covered precisely by the legislation, although we might have the opportunity to amend it if it were to go into Committee, I am appalled by the way the inquiry is being run. I ask a very simple question that is essentially about anonymity. How can it be just for IICSA to allow accusers, behind the cloak of anonymity, to accuse people who are the highest and the lowest in the land, if that is the term, of sexual abuse when those accused are dead and cannot reply—where there is no defence at all? That is happening in the Janner case.
There are two injustices involved in these kinds of cases: first, the lack of anonymity, which people should have if they are to be referred to; and, secondly, the fact that there is no right of defence as there is no one there to defend. These accusations will end up in the public domain, because IICSA has made it quite clear that the press has access to its inquiries and it can simply print or publish what it wishes.
What is happening in IICSA today is one of the great injustices of our time. This over-remunerated operation, which I understand will cost some £100 million —when the truth finally comes out on its expenses I think people will be shocked—is far overreaching the responsibility set when the original remit was established by the Prime Minister. It should be reviewed as a matter of urgency. Underlying any decision about how it operates should be the principle that people are entitled to be treated justly and fairly, and to be sure that their reputations, when they die, are treated equally.
Lord Marks of Henley-on-Thames (LD)
My Lords, I start by congratulating my noble friend Lord Paddick on the excellent way he opened the debate on the Bill so lucidly and eloquently. He has, of course, campaigned for this change for some time. Indeed, we tabled an amendment to the Policing and Crime Bill in 2016, seeking pre-charge anonymity. On that occasion we withdrew it, but I am very pleased to see that my noble friend is taking it forward to legislation.
I am supposed to be winding up this debate on behalf of the Liberal Democrats. Since my noble friend Lord Paddick was to be the only one speaking before me, I was pleased that the noble Lord, Lord Campbell-Savours, spoke in the gap, so that I would have some winding-up to do, as well as supporting my noble friend.
I welcome the Bill. It is right that it does not stop with sexual offences but talks about criminal offences in general, because a wide injustice occurs as a result of unfair exposure to publicity of people who are innocent. We all know the high-profile cases—my noble friend mentioned Lord Brittan, Paul Gambaccini and Sir Cliff Richard—and we know of many others. Some are not exactly high-profile and are just pursuing anonymous lives, but there are many who are half way up the system, who cannot afford to take proceedings, who do not have the influence to complain, but who are exposed, if they are arrested falsely then released, to damage to their reputation in their communities that can be long-lasting.
My noble friend, and the briefing, reminded us of the couple who were arrested for flying drones at Gatwick. They were, I suggest, mercilessly and falsely hounded by the press in a, frankly, unforgivable way, but the press thought it made a good story and there was the background that many people had lost their holidays and been caused severe disruption by what had happened. The result, when they were photographed, their names and pictures were published, their house was searched and they were held in custody for some time, was that they felt completely violated. It is also possible they were exposed to danger from the less scrupulous of those who had been seriously affected. The problem for their reputation is that people do not follow the details as closely as they might. They will be forever known by the question: “Oh, weren’t they the ones who had the drones at Gatwick?”. That kind of innuendo and misinformed spread of rumour trashes reputations unjustly.
My noble friend rightly talked about balance, and it is a question of balance. It is balancing the right of the public to be informed—the so-called right to know—against the right to personal and family privacy. He was also fundamentally right to mention the presumption of innocence. That is a presumption in our law that is at the root of our liberties, and yet the exposure to our reputations being trashed by the media strikes at the heart of the value of the presumption of innocence. Too many are convicted and have their lives ruined not by processes of law but by gross and intrusive publicity, often to be released without charge or simply not charged, but to find that they are nevertheless convicted at the bar of public opinion.
The internet and social media make the position far worse. It has been a few years now, but many of your Lordships will remember the film “Notting Hill”, and Hugh Grant tries to reassure Julia Roberts when his house is surrounded by press photographers and television cameramen. He says to her, “Don’t worry: today’s newspapers are tomorrow’s fish-and-chip wrappings”, and she says, “No, everything I do, every time I am seen in public in future, the pictures they’ve taken today will be taken out, hauled out, and put in the newspapers”. That effect may be dramatic for film stars, and her character was a successful film star, but it is also dramatic for anybody who takes any part in public life. I suggest there is a danger that people are avoiding public life because of the danger of too much publicity. The Bill is a small step on the way to combating that evil.
I echo the point made by my noble friend that this is about arrest rather than charge. Anonymity is to be extended by the Bill not to those who have been charged but to those who have been arrested. He made the very valid point about the difference between the test that the police have to apply when they arrest somebody, which is no real proof of guilt, nothing that gives rise to major suspicion, and the test that the Crown Prosecution Service or the police have to meet before somebody is charged.
What are the arguments against? They are twofold. First, there is the argument that people will not come forward. My noble friend mentioned the Warboys case, but it is often used in cases of domestic and sexual violence, in particular. I wonder whether that is true. Unlike the noble Lord, Lord Campbell-Savours, perhaps, I believe that the exceptions to reporting restrictions contained in Clause 2 provide that balance. I do not see difficulty about the interests of justice or the public interest: those are the general principles that would be applied by a judge in the Crown Court hearing such an application. Reasons given for lifting restrictions include that,
“it may lead to additional complainants coming forward … it may lead to information that assists the investigation of the offence … it may lead to information that assists the arrested person; or … the conduct of the arrested person’s defence at trial is likely to be substantially prejudiced if the direction is not given”.
Those are reasons that may well, in particular cases, justify the lifting of the anonymity restriction.
We have to trust the judges. They know the principles they are supposed to apply and they are given a key, in what is not an exhaustive list, to the circumstances that might justify this. In my view, those factors strike a reasonable balance between the interests of publicity and of justice.
Lord Campbell-Savours
I am sorry to press the noble Lord, who is an eminent lawyer, but I go back to,
“it may lead to additional complainants coming forward”.
Is that not the case in almost all rape cases?
Lord Marks of Henley-on-Thames
No, I think it is not. I do think that there are many cases involving defendants or suspects in cases of sexual abuse, grooming and so forth, where the publicity may well lead to other complainants coming forward. Where there is a reasonable prospect of that, it seems to me right that a judge should have the power to raise the issue of anonymity. That is the point. I also believe that people who might not otherwise come forward, because they are frightened and deterred by what has happened to them from raising something publicly, gain courage from the fact that there is publicity about particular defendants or suspects. If they realise that a suspect is under suspicion for offences against 20, 30 or 40 other people, they are encouraged, in the public interest and the interest of their community, to come forward and make a complaint where otherwise they might not have done so. It seems to me that a judge is entitled to weigh up those features of the case and to come to a just conclusion.
It is also important that subsection (3) is well-balanced, because it allows the person arrested to say, “No, I do not want anonymity” for any reason. It allows both the chief constable, on behalf of the police force, and the prosecuting authority to make an application. Of course, the “any other person who has an interest” provision might be subject to financial constraints, because it is a big step to go to the Crown Court and people have to be able to do it—but the police and the person arrested may well decide to make that application if they think that it is important.
I also draw attention to subsection (4), which allows for consent applications. If there is a consent application and the arrested person and the chief constable or the prosecuting authority agrees, the direction shall be made—the judges say, “If they all agree, you can do it”. That, it seems to me, preserves the right to choose of people arrested, in a way that is quite important. So I believe that the Bill does strike that important balance.
The second argument deployed against this Bill is the idea that it will end open justice. In a sense, it is of course a restriction on the public’s right to know who has been arrested—but it is not a restriction on the right to know that somebody has been arrested. The restriction is limited to the revelation of that person’s identity, or information that would lead that person to be identified. Again, I believe that this is a balanced approach.
It is only a question of open justice before anybody is charged. When you balance justice to the uncharged suspect against justice to the public—often in this case the public as purchasers of prurient newspapers or listeners to television programmes that are trying to improve their ratings, which we have seen so many times—it is important to have regard to both sides.
My noble friend pointed out that the police are bound by the guidance of the College of Policing, which protects innocent suspects in the vast majority of cases: their identity is to be released only if there are exceptional reasons for doing so. He mentioned sex cases, where victims get lifetime anonymity. That is a question for another day; sometimes one thinks that it may need consideration, but on balance I agree with him that lifelong anonymity for victims of sexual offences is better than excessive and unwarranted exposure.
These are difficult questions; they always are. In my judgment they are questions that need addressing with statute because society as a whole has got the balance wrong. The Henriques paper talked about the balance and the need for statute in the light of his investigation of particularly serious cases. These cases are far more widespread. At the moment there is excessive and unwarranted exposure of people who are arrested but not charged, which leads to cases of very serious injustice. I fully support the Bill and invite the House to give it a Second Reading.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, with his Private Member’s Bill the noble Lord, Lord Paddick, brings before the House a very important issue that has in recent years come much more to the forefront of public debate.
The experiences of those accused but not charged of sexual offences, or charged but subsequently acquitted, has exposed the intensity of media scrutiny for alleged sexual offences. That leads to damage to private lives, reputations and the very important right to be presumed innocent, which we should all cherish. Complainants in sexual offence cases are, as we have heard, assured of lifetime anonymity. There is no protection available to defendants. As noble Lords will know, the principle of anonymity in sexual offences was introduced in the Heilbron report of 1975, which proposed lifetime anonymity for complainants.
We have talked in this debate about the many cases of public figures, from various different walks of life, being under intense public scrutiny. The damage and devastation that can be caused to private life by media scrutiny has been starkly set out. We have heard of prominent cases, including those of Sir Cliff Richard and Paul Gambaccini, but, as we have also heard, this is an issue for those not in the public eye—ordinary citizens who find themselves accused of certain matters. We should all be concerned that, if people are accused, they should be thought of as innocent until proven guilty. However, I very much accept the point that unfortunately, weeks, months and years later, people will say, “That’s the person who did this”. People see it in the media and they just believe it.
I also recognise, however, that publishing a defendant’s identity, and the response to it, has encouraged victims to come forward in some cases. I think I am right to suggest that people came forward in the cases of Stuart Hall and Rolf Harris, which, in the end, enabled those two men to be brought to justice for their crimes.
Noble Lords may not remember but there was also the SNP MSP Bill Walker, who was convicted of domestic abuse. He was elected to the Scottish Parliament in 2011, convicted in 2013, went to prison and had to resign his seat. Again, as a result of the initial publicity, many other people came forward. I think his first wife told the court that she had to wear concealer to cover a black eye on their wedding day. It was appalling. When one person came forward in that case, so did a number of other women with whom he had been involved, so it was important.
If these cases did not receive a lot of publicity, that would not happen. Publicity causes other victims to come forward. Noble Lords have mentioned the Worboys case. I think 85 victims came forward when his identity became known. Again, that was very important—the scale of the man’s crimes was brought into perspective.
Even when someone is not officially publicly identified, there is now the whole issue of the internet. It is a kind of Wild West, and we have often debated how we will control it. I know that the Government’s White Paper on internet safety is coming out shortly, but it is a huge issue. Even when things cannot be reported, stories fly around the internet, and how we will deal with that is an issue.
I have concerns, however, about how information is released. I mentioned Cliff Richard previously. I think I am right in recalling that there was a BBC helicopter flying outside his house. That is totally outrageous. Somebody somewhere—I assume from the police—told the BBC, “We’re going to raid this celebrity’s house and you might want to come along”, and the BBC said, “This is so big that we’ll get a helicopter up there”. That is totally unacceptable.
There are issues that we need to reflect on further, including how this should be handled in the future. Some publicity is useful, as I outlined earlier, but these matters need to be handled properly. The noble Lord, Lord Paddick, mentioned the College of Policing guidelines. He will know them much better than I do, but it is a question of the police—these are operational matters—and the media acting responsibly. Clearly that has not always been the case, so these things should be properly codified and agreed.
Lord Marks of Henley-on-Thames
The noble Lord talked about the Cliff Richard case and he is right: it was a BBC helicopter. As we have heard, Cliff Richard was able to bring a case, at great expense, and he secured an award. However, even with that course of action, does one not feel that many people now have at the back of their minds the idea that there is something wrong about Cliff Richard? His reputation has suffered even though he was able to bring proceedings. The vast majority of people do not have the opportunity to bring proceedings. It is all very well to say that the press should behave responsibly—of course the media should behave responsibly. But does the noble Lord not agree that there is no way of codifying that without us in Parliament doing it for them?
Lord Kennedy of Southwark
I was going to come on to that point. Essentially, my next point is that I agree entirely that unfortunately, in the court of public opinion, people’s reputations are often trashed and damaged. That is one reason why it is so regrettable that we will not move on to the second phase of the Leveson inquiry, which was going to look at some of the issues here. The Government have decided that they do not want to do that. I accept the point that people can be damaged very much by these issues.
In conclusion, I assume that because of where we are in the parliamentary cycle, the Bill will not make much more progress. However, it has highlighted an important issue: the situation is not right at the present time. I cannot see the Bill progressing much further, but I hope the Minister will be able to respond to the general points raised in the debate.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I congratulate the noble Lord, Lord Paddick, on introducing the Bill, which is on an important topic. I thank him for congratulating me on this being my third Bill this week but of course the noble Lord, and the noble Lord, Lord Kennedy, are also on every Bill I am on. We have had a bit of a marathon week but we are all still smiling, which is the important thing.
The nub of the debate today has been about the balance between press freedom and personal privacy, which is important. The Government are committed to protecting the freedom of the press and recognise that a vibrant and free press plays such a valuable role in our cultural and democratic life. How lucky we are to have our free press. We want to make sure that it continues, with high journalistic standards and with work absolutely in the public interest.
Of course, the right to freedom of expression is not absolute and must be appropriately balanced against the right to privacy. As enshrined in Article 8 of the European Convention on Human Rights, everyone has the right to respect for their private and family life, their home and their correspondence. Any interference with this right must be in accordance with law and necessary in a democratic society and, as such, must be adequately protected. The courts have had to develop privacy law in accordance with Article 8, resulting in the development of the tort of misuse of private information. Information will be considered private where a person has a reasonable expectation of privacy in relation to it, which is a fact-sensitive assessment. Article 10 of the convention, which covers freedom of expression, is often relied on in defence of a privacy claim, resulting in the need for the balancing of Article 8 rights against the Article 10 rights.
The Data Protection Act 2018 puts in place a framework for the protection of data that either identifies or is capable of identifying living people. Within this framework, the privacy rights of individuals are balanced against the legitimate needs of public and private sector organisations to make use of such data, including publishing it. The Act provides the rules by which the processing of personal data for legitimate purposes can take place, and “processing” includes the disclosure or sharing of personal data. To be compatible with the Act’s requirements it must be shown, among other things, that the living individual to whom the disclosure relates has consented to the disclosure, or alternatively, that there is a lawful basis that it is necessary to disclose the data for. The Act and the GDPR set out what those lawful bases are, including the public interest.
Publishing the names of suspects and others who stand accused of wrongdoing is not of itself unlawful unless found to be in contempt of court. Private law actions, however, can be brought against those who disclose such information, based on the right to privacy.
In considering the balance we are trying to achieve, we must remember that there are times when, as the noble Lord, Lord Pannick, said, in a comment almost identical to that made today by the noble Lord, Lord Marks,
“publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward”.—[Official Report, 16/11/16; col. 1454.]
That is an important comment, which the noble Lord, Lord Marks, reflected today. More recently, the #MeToo movement has been a living testament to this.
I see that the Bill in the name of the noble Lord, Lord Paddick, would not necessarily prevent disclosure in these circumstances. It is focused on a specific period—that between arrest and charge—and it allows for restrictions to be lifted in exceptional circumstances.
In this way, it mirrors the framework within which the police operate. The circumstances in which suspects’ names may be released to the media by the police are set out in the authorised professional practice guidance on media relations issued by the College of Policing, as the noble Lord, Lord Paddick, said. It makes clear that the police will not name those arrested or suspected of a crime save in exceptional circumstances where there is a legitimate policing purpose to do so. A legitimate policing purpose may include circumstances such as threat to life.
Lord Marks of Henley-on-Thames
I am sorry to interrupt the Minister. She mentioned exceptional circumstances, which is of course right about the police guidance, but this exception is not an exceptional circumstance. This is when the Crown Court judge thinks it is appropriate to make the order in the interests of justice and for other reasons. There is no bar of exceptional circumstances. It is for the judge to weigh up the consideration either way and make a decision.
Baroness Williams of Trafford
I completely acknowledge that point. I am just trying to give the context of everything that has been discussed in the debate.
The rationale for naming an arrested person before charge should be authorised by a chief officer and the Crown Prosecution Service should be consulted. Noble Lords, particularly the noble Lord, Lord Paddick, will know that in May 2018, the College of Policing updated this guidance to make clear that it also applies where allegations are made against deceased persons.
The Bill would replace this administrative system with a requirement for the chief constable to apply to a Crown Court judge for a direction that reporting restrictions be lifted. This risks adding potentially dangerous delay in fast-moving investigations as well as placing additional burdens on our courts.
It is not clear that this is necessary. On the contrary, the existing arrangements for the police seem to strike a sensible balance. To test whether these changes have had the desired effect, the previous Home Secretary asked Her Majesty’s Chief Inspector of Constabulary and Fire & Rescue Services to carry out a short, targeted review of police adherence to the guidance on media relations, looking in particular at pre-charge anonymity. The inspectorate is undertaking a scoping study this financial year to consider where inspection activity might best be focused.
I recognise, of course, that the guidance on the police releasing suspects’ names does not address the separate concern about the media publishing suspects’ names, which the media may find from other sources, but the media has its own framework for guiding its behaviour. Ofcom’s broadcasting code places detailed requirements on broadcasters to ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality. Robust powers are available to enforce adherence to the code. Statutory sanctions include levelling a fine and, in serious cases, revoking a broadcaster’s licence to broadcast.
For the press, there now exists a strengthened, independent, self-regulatory system. The majority of traditional publishers—including 95% of national newspapers by circulation—are members of IPSO. A small number of publishers have joined Impress, while others, including the Financial Times and the Guardian, have chosen to stay outside either self-regulator with their own detailed self-regulatory arrangements.
IPSO’s editors’ code puts in place robust requirements of accuracy and privacy.
Lord Kennedy of Southwark
I think I am correct in saying that IPSO does not meet the standards set by the regulator.
Baroness Williams of Trafford
The noble Lord may be correct but I will confirm that in writing.
Lord Kennedy of Southwark
I think the Minister is correct, but my point is that I do not see how it can be a robust regulator if it does not meet the standards set by the regulator.
Baroness Williams of Trafford
I thank the noble Lord for that point. IPSO requires that any significant inaccuracy or misleading statement be corrected promptly and with due prominence—that is important—and, where appropriate, an apology published. If an individual is unhappy with their treatment by the press, the availability of a compulsory low-cost arbitration service from both IPSO and Impress, which can be used for privacy actions against member publications, can provide easier recourse to justice than going through the courts. The noble Lord, Lord Marks, talked about the Cliff Richard case. Of course, following that, the BBC asked the Government to consider the merits of conducting the review I just talked about to see whether any further action is needed in this area.
I conclude by saying that the Government have considered the Bill carefully and are sympathetic to its aims. There are precedents for placing restrictions on the freedom of the press to report the identities of, for example, victims of sexual offences, but restricting press freedom is a serious matter and we are not yet persuaded that legislating in this instance would be a necessary or proportionate response to the perceived problem. It would certainly be premature to take action ahead of the HMICFRS review, which I hope will enhance our understanding of policing practice in this area. We recognise the importance of debating these issues and we will keep the position under review.
Lord Paddick
My Lords, I am conscious of the time but I want to address some of the comments made. The noble Lord, Lord Campbell-Savours, is rightly concerned about the police going on fishing expeditions by publicising the fact that they are investigating or have arrested somebody. There is a difference between investigating a case where the Crown Prosecution Service feels that there is insufficient evidence to bring charges and a case where there is sufficient evidence. Of course, once a person has been charged, there is no limit on the amount of publicity that can be given to the case so that other individuals can come forward. Therefore, the number of cases where a judge would grant a lifting of anonymity would be a lot smaller than the noble Lord thinks.
I thank my noble friend Lord Marks of Henley-on-Thames for his support. As he said, it is a question of balance. The important legal principle of a presumption of innocence is in jeopardy; the Bill attempts to restore it in a limited way. On the point made by the noble Lord, Lord Kennedy of Southwark, publicity may be helpful in some cases. The Bill allows for that to happen.
The Minister emphasised the police’s role in all this, saying that it would be premature to take action until after the review from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on how the revised College of Policing guidelines were working. However, I remind her of the Gatwick case, to which noble Lords have referred. The police did not reveal the identity of the individuals they arrested. Neighbours told the press that a home was being raided, so the press identified the individuals either by talking to their neighbours or by examining the electoral roll. They then published the details and vilified the individuals, blaming them for the disruption to those people caught up in the chaos—wrongly. That points to the need for this legislation, as opposed to a review of the College of Policing guidance. Having said that, I ask the House to give the Bill a Second Reading.