Anonymity (Arrested Persons) Bill

David Nuttall Excerpts

Friday 4th February 2011 Commons Chamber

[Anna Soubry]

My hon. Friend makes an extremely important point. I am familiar with Loughborough Echo. For reasons that I shall not go into because they are completely irrelevant, I buy it and I read it. It is an example of a good local paper, but it is also an example of a paper that is struggling with its circulation. I am delighted that it has such a column. When I worked on the Alloa and Hillfoots Advertiser and Journal, one of the great sources of our stories was the sheriff court. As a trainee journalist, I was duly packed off to sit with my newly acquired shorthand skills, which were extremely limited, and report on what was happening there. One of the problems in our society is that because so many newspapers find themselves in a position where they cannot afford to employ the staff that they used to employ, they are not covering the magistrates courts or the Crown courts in the way that they did. I know that from my experiences at the Nottingham Evening Post, which had a reporter in almost every court.

[Mr David Nuttall (Bury North) (Con)]

I am interested to hear about my hon. Friend’s experiences in Scotland. Can she explain whether the procedures in Scotland were the same as in England and Wales? The Bill affects only England and Wales, and perhaps she can enlighten us on whether the code was the same in Scotland.

[Anna Soubry]

I thank, I think, my hon. Friend for that intervention, although it is the sort of intervention that is not terrifically helpful, in that unfortunately I do not know the answer and I will not pretend that I do. But I do know that throughout the United Kingdom the convention used to be not to report the name and address of someone when they were arrested. When they were charged, it was completely different.

To return to the point made by my hon. Friend the Member for Loughborough (Nicky Morgan), because people who committed offences, especially in their local community, were dealt with in the magistrates court where there was a reporter from the local press, upon conviction or a guilty plea, their name would be publicised locally. People would know that Bloggs down the road had had his hand in the till, or that Mrs Somebody had smashed the bus shelter. It was almost part of the punishment that people’s names would be in the local paper and that neighbours would know who had committed a criminal offence. It is a great shame that, for perfectly understandable reasons, so many of our newspapers now simply do not have the reporters to cover such cases. There is also a very good argument that they are missing a lot of good cases that they should be covering for reasons that I have explained, and also because they provide good copy.

The other reason why our newspapers and television networks are suffering a decline in circulation and are engaged in a war of ratings is the internet. All hon. Members, especially those of us who are new to this place and fought in marginal seats, are more than aware of the great power of the internet, Facebook, Twitter—truly not my bag; I leave that to people considerably younger than I am. But we are all urged to have our websites and update them regularly, and to send out our e-mail newsletters. We recognise the fantastic benefit that the internet has given to society, but there is a downside. With all good things, there is always a downside. The downside of the internet is that there is an abundance of information; as I have said, for false slurs can stay on the internet in perpetuity. The internet is a genuine alternative for sources of information, including news, to newspapers and television. I have a great deal of sympathy for newspapers that put a lot of their news on their website, which is free.

I have to make this point, because it is important. To their credit, by challenging effectively the financing of the BBC, the coalition Government are asking whether it is fair that its website is completely free to view. The BBC website is an outstanding source of news, but it means that newspapers in particular, as well as other broadcasting companies, operate their websites with one hand tied behind their back, because they do not have the advantages that the BBC has through the licence fee and the other freedoms that it enjoys which allow it to produce such an excellent website.

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[Anna Soubry]

I am grateful to my hon. Friend for that intervention, because he makes another important point. That is why the Bill, to cover exactly that situation, enables the prosecution to apply to a Crown court judge for leave to allow the media to publish the name and address of somebody if they believe it is in the interests of justice, which means a belief or a suspicion reasonably held that other people might come forward either to make a complaint or to assist the police in some way in their investigations.

The same exemption exists for the arrested person, because there are instances whereby somebody who is arrested might want their name published, especially in the local paper. For example, somebody might be arrested following an allegation by their employer that they have been stealing from work, and their defence might be not just, “I haven’t done it,” but, “I know my employer has made the same allegation against other workers and they haven’t done it. Somebody’s got their fingers in the till. It’s not me, but they’ve now pointed the finger at me because it suits them and is convenient, so I want my name in the newspaper and I am quite happy for my address and the fact that I work at such and such a place to be published, because I believe that x workers there or other people may come forward with information that will assist my preparation of my defence.” I have allowed for all that, because I do not like blanket bans on anything, and it is always important to recognise that there are exceptions to every rule.

My hon. Friend the Member for Sherwood (Mr Spencer) mentions police investigations, and we forget that in many instances the police are appalled by the sort of coverage that we all saw in relation to the first man’s arrest in Bristol. It is an injustice to the police to say that, in those instances where names and addresses have been leaked to the press, it is always their fault, because it is not. No doubt there are instances when the police give the name and address to a member of the media, and some cash might change hands. I do not have evidence of it, however; I am working only on what others tell me.

In a high-profile case such as the Bristol murder, however, with all the media attention it is almost inevitable that, if somebody is arrested, a neighbour, especially somebody in the proximity of either the deceased or the place where the crime occurred, will see or know that Bloggins has been arrested. The neighbour or somebody else will often just happen to know the person, as people do in any community, not just small ones, and they will give the name to the press. The police do not always do so, and it would be wrong to place all the blame on them.

I do not want to get into a blame game, but if anybody is to blame then responsibility lies with the media and, ultimately, all of us—everybody who buys newspapers, watches television and listens to the radio. If only we could gather together and say, “Enough is enough. I am not going to buy this newspaper, watch that television news programme, listen to that radio station or subscribe to that television channel,” we might make the progress that we all want and, as I have said, cure the mischief that we all oppose.

I very much want to deal with the Contempt of Court Act 1981, to which we have alluded. I shall tread carefully, because we do not want a debate about jurisdiction or to pick over the Act in detail, but, having read it, I and others take the view that in its current form it is not the device to cure the mischief that we all agree must be sorted out. Although the strict liability rule that it imposes—indeed, the whole nature of the Act—deals with people who have been arrested, the rule is clearly designed to deal with cases that, in effect, are in the court process. But if one is arrested, one might never go to court. That is the whole point: unless one is charged, one will not go to court. I hope I am explaining my point fully and in non-legal terms, because the Act does not cover the misdemeanours and wrongs that we all want righted.

[Mr Nuttall]

Does the Act not apply to active cases, and is it not therefore just a problem of interpretation? If we interpreted the Act more strictly, we would capture all those cases.

[Anna Soubry]

With great respect to my hon. Friend, I wish it were as simple as that. The Act certainly deals with people who have been arrested, but it states:

“The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”

That is a very high test, and my understanding of its interpretation is that there have to be court proceedings that are likely to be impeded or prejudiced. When somebody is charged, they will go into court very soon afterwards—court proceedings are almost inevitable. At the moment, as soon as somebody is charged the sort of coverage in the press that we see when somebody has been arrested ends completely. That is because the press knows that subsection (2) deals with cases once somebody has been charged because, in effect, proceedings will have begun. There are no proceedings when people are arrested because they have merely been arrested. They can be arrested, taken to a police station but not interviewed, and “bailed back” to another day. That is why the Contempt of Court Act, as it stands, is inadequate.

Whatever happens to this private Member’s Bill, I very much hope that as a result of the publicity surrounding this debate and, particularly, that surrounding the first man arrested in the Bristol case, will turn the Government’s attention to the Contempt of Court Act. If that Act were amended, then people who are arrested could have their name and address published, but all the highly prejudicial material that we saw in the Bristol case would not be published because, in effect, it would be in contempt. Contempt is probably not the right word to use: to put it in lay terms, it is plain unfair and wrong. It may well be that through the Contempt of Court Act, or some other instrument, we can make things better and cure the mischief.

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[Mr Buckland]

I agree with my hon. Friend about the assertion of facts that could be prejudicial to any future investigation, although I would say that I am now of the view that internet and print media are indistinguishable. The only difference between them is that today’s print is tomorrow’s firelighters—tomorrow’s chip paper, as I think I called it in another debate. The problem with the internet is that it is not just for Christmas, it is for life. I could give a number of examples of constituents who, years after having been exonerated and cleared of very serious allegations, still have to live with the fact that when a Google search is made against their name, a newspaper report about that false allegation comes up. It haunts people who are in that unfortunate situation. As I said earlier, that is a matter for DCMS input and for regulation, because we need consensus about how to deal with the sometimes baleful effects of internet reports that linger for years and years.

I return to what I regard as the grey area between arrest and charge, and the somewhat cumbersome nature of the Contempt of Court Act 1981. As I said in an intervention on my hon. Friend the Member for Broxtowe, the leave of the Attorney-General is needed before any prosecution is brought, which can often be a cumbersome way of doing things. Such things take time, because obtaining that leave can interrupt proceedings and lead to a delay before a decision is made, which can be damaging in itself. As she said, the test set out in that Act—whether there is

“substantial risk that the course of justice…will be seriously impeded or prejudiced”—

is a high one. It mentions the course of justice, however, and at the point of arrest we do not know whether there will be a course of justice in the sense of a charge. I can see many a clever lawyer—much cleverer ones than me, although I have received a degree of praise today that I perhaps do not deserve—taking that point firmly by the reins and running with it.

In short, the Act, which is celebrating its 30th year, needs revision, and here is my suggestion. We should consider the point between arrest and charge in a different way from the point from charge to trial or conviction. There should be a presumption against the publication of details of an arrested person prior to charge; then that presumption should be reversed post-charge. In other words, we should apply the interests of justice test, but with safeguards in place, acknowledging that the decision to charge is significant. It means that the prosecution has formed the view that there is a reasonable prospect of conviction, and that it is in the public interest to charge. That is an important and simple test that everybody can understand, both in this place and elsewhere, and it should trigger more disclosure.

Prior to that point, unless there are public interest reasons such as those clearly set out in the Bill, the presumption should be the other way around and there should not be publication unless there is a clear public interest such as that my hon. Friend the Member for Shipley (Philip Davies) rightly referred to. I can imagine, and in fact I know of, scenarios in which there is a tight-knit local community or an estate in which a particular issue arises, and it would be in the local public interest to know that suspect A had been arrested. That person may well be known to local people, and it would give them a sense of confidence that the criminal justice system was working. Most importantly, if there were any perceived injustice at that stage, people in the local community could come forward and say, “We think you’ve got the wrong person—will you investigate why?” I can imagine a whole host of community and wider public interest reasons why publication could and should take place.

The observation that my hon. Friend the Member for Dartford (Gareth Johnson) made earlier about limiting the details that can be published to someone’s name and address has merit. In the spirit of the comment of my hon. Friend the Member for Broxtowe that the Bill is not necessarily the precise device needed to cure the mischief, it could well be that if the Bill proceeds further, or in the course of a wider review of the Contempt of Court Act, we should consider carefully whether setting out clearly in statute a provision for the publication of name and address could cure the problem of the grey area that I have been talking about.

I have mentioned the exceptions that my hon. Friend has set out in clause 2. I welcome them, with one caveat. Subsection (2)(c) and (d) state that it will be in the interests of justice to make a direction when

“it may lead to information that assists the arrested person”

or if

“the conduct of the…defence at trial is likely to be substantially prejudiced if the direction is not given.”

I wonder whether we need the word “substantially”. Perhaps it would be far better to take it out and make the point that if the defendant wants the provision to apply, that is a matter for them. The burden of proof is not on the defendant, as we all know, so perhaps that word should be taken out.

[Mr Nuttall]

I will hopefully have the chance to make this point in my own comments later, but does my hon. Friend agree that subsection (2)(c) and (d) could be removed from the Bill, so that we could have a far easier process whereby the defendant would sign some sort of statement, having taken legal advice, that they were happy for their name to be released?

[Mr Buckland]

I am always attracted by arguments that lead to simplicity, and indeed, that could work. I believe that an interests of justice test should be construed widely, and that when we list particular circumstances, lawyers tend to take a prescriptive view. There is a highly attractive aspect to what my hon. Friend says, and I am sure that my hon. Friend the Member for Broxtowe would consider such an amendment carefully.

Perhaps we are getting into legalese, and I apologise for that. I shall move on to highlight an interesting local debate in my constituency. My local daily newspaper, the Swindon Advertiser, quite properly has an interest in reporting local crime and antisocial behaviour, and it does so in a largely responsible way. Once or twice I have taken issue with the editor, perhaps when a photograph has been a little insensitive, but broadly speaking I am very much in support of my local newspaper’s work. An interesting debate recently occurred in the paper about whether the names of young people who have been made subject to interim antisocial behaviour orders should be published. [Hon. Members: “Hear, hear.”]

I thought that would arouse some interest. My view is that, whenever possible, the names of young people who are on full or interim ASBOs should be published. That goes back to my earlier point about the immediate local community and its clear interest in helping the police enforce ASBOs. As we know, enforcement of ASBOs has been one of the main criticisms of the mechanism, which has existed for the past 10 years. Far too often, ASBOs have failed because of poor implementation.

The problem arises with the interim ASBO. There is a legal halfway house between a full hearing, in which the evidence is set before the court, the court is satisfied to a high standard that the case has been proved, and an ASBO is issued—frankly, publicity should follow that because due process has occurred—and the interim stage, for which the test is whether the judge thinks that it is just to impose an interim ASBO. That is a wide test. In reality, a judge is faced with a wealth of documentary evidence, which the complaining authority in civil proceedings—usually the local authority—has amassed, and reached the view that there is a case to be made and that, in the circumstances, the interim ASBO is just. However, no formal findings of fact have been made at that stage. Again, it is a grey area, and I can see both sides of the argument. However, I believe that when we reach such a stage, the presumption should be in favour of publication. I hope that my analogy between civil proceedings and the criminal process after charge is clear.

I read with interest several leaders in national daily newspapers that either support or oppose the Bill. The Daily Telegraph’s leader struck me particularly as falling into the trap of eliding two issues. It brought together the Bill and celebrities such as footballers obtaining injunctions to prevent the publication of their names and details in relation to salacious stories about them. I see no correlation between that scenario and the purpose of the Bill. Why? In the celebrity scenario, we are dealing with behaviour that has not been denied. It is not a question of celebrity X saying, “Prove it. This never happened.” Instead, the celebrity is saying, “It’s my private life. I’m not getting into whether it happened; I’m not making a big fuss about that—I just want privacy.” That is different from the problem that the Bill addresses.

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[Mr David Nuttall (Bury North) (Con)]

I congratulate my hon. Friend the Member for Broxtowe (Anna Soubry) on her success in the ballot for private Member’s Bills and on securing the right to bring the important matter addressed by her Bill before the House this morning. Let me also remind Members that I have an interest to declare, as a solicitor and notary public, although I am non-practising and have not practised in criminal law. This debate deals with matters that I have not previously been engaged with.

Let me pick up one or two matters mentioned by earlier speakers. My hon. Friend seemed almost to be suggesting that the Bill should amend the Contempt of Court Act 1981. I can well see from the arguments that have been brought out this morning that there is perhaps a good case for doing that, although that is not what we are being asked to consider this morning. What we are being asked to consider is the Anonymity (Arrested Persons) Bill. However, the whole problem is that the people concerned are not anonymous. We know exactly who they are—or some people do. The difficulty is this: how we do, as a legislature, try to control what other people gossip about? I hope to set out some reasons why I think this will be a very difficult task, indeed, if not nigh impossible.

In reply to an intervention, my hon. Friend the Member for South Swindon (Mr Buckland)—who I see is just leaving the Chamber—was drawn into considering the respective strengths and merits of newspaper reports, as compared with the believability of internet reports. As the years progress, it seems to me that there is increasing parity between the two. Indeed, I submit that what often tends to happen is that something will immediately be released electronically and disseminated on the internet, and then the next day—or perhaps a day or two later—it will be picked up by the mainstream media and the printed newspapers. It does not seem sensible to suggest that the initial disclosure of that information—in this context the name, address and details of an accused person—is any less likely to be believed because it is read on the internet than it is because it is read in a newspaper a few days later, because ultimately that information may have come from the same source.

There can be no doubt that, if passed, this Bill will have an important and wide-ranging impact on the lives of those accused of committing criminal offences. It will also have a substantial impact on the media and, in particular, their crime reporters, one of whom, in a previous life, was my hon. Friend the Member for Broxtowe—

[Anna Soubry]

rose—

[Mr Nuttall]

To whom I shall happily give way.

[Anna Soubry]

Does my hon. Friend accept that all I am asking for is that we revert to what used to happen? In the past, the name and address of an arrested person—not an accused person: an arrested person—was not published. All I seek to do is to revert to the old convention, which means that we would not have the sort of reporting that we have seen in Bristol.

[Mr Nuttall]

I think that that could be dealt with by the code of conduct for newspapers, which I understand already exists. There is no reason why that could not happen. In any event, the difficulty nowadays lies with the explosion of information on the internet. Therein lies the real problem. Everyone would agree that it is entirely laudable and sensible to ensure that the innocent accused should have their right to anonymity protected. The difficulty is whether we can achieve that in this day and age.

[Philip Davies]

The issue that my hon. Friend seems to be coming to is that people are not just innocent until they are charged, but innocent until they are convicted. Does he not think that what is being proposed could become a Trojan horse, and that the next move could be to say that nobody’s details should be released, not just until they are charged, but until they are convicted of something?

[Mr Nuttall]

My hon. Friend makes a good point. The Bill seeks to suggest that someone who was accused of a criminal offence and then arrested should be entitled to anonymity, but that that anonymity would be lost the moment that a charge was brought. Logically, if the reason for going down that road is the rule that someone is innocent until proven guilty, we ought to maintain the anonymity of the accused right up to the trial, although I can appreciate that there may be reasons why they may not want that.

[Anna Soubry]

Surely the distinction is that, as soon as someone is charged, the Contempt of Court Act 1981 comes into full force. The Act prohibits any publication that would prejudice the court proceedings. The point about the material published in the Bristol case was not only that it breached that man’s privacy but that it would undoubtedly have prejudiced any trial. We all want to ensure not only that justice is transparent but that it is not prejudiced.

[Mr Nuttall]

My hon. Friend makes a valid point. I submit that the reporting in that case fell foul of the Contempt of Court Act. As I said earlier, this raises the question of whether these matters would be better dealt with by an amendment to that Act. Such an amendment, combined with a strengthened code of practice enforced by the Press Complaints Commission, could be the way to address what we all accept is a genuine problem.

Every year, thousands of cases would be affected by this proposed change in the law, and, as with any law that we pass, it is imperative that we should get it absolutely right for the sake of everyone who would be affected by it. The basic tenet of English law that everyone is presumed innocent until they either plead guilty or are found guilty in a court of law is one of the cornerstones of our criminal justice system. I suspect that few, if any, people would dispute the sense of that basic principle. It is perfectly sensible that the Bill should seek to protect any innocent individual who runs the risk of having their character blackened, possibly for the rest of their life, merely as a result of having been arrested by the police. That arrest could well have come about as a result of the malice of someone who was entirely ill-intentioned, and the arrested person could be entirely innocent of having committed any crime.

My concerns about the Bill lie not so much in the principle behind it or in the fact that it seeks to put right an area of the law that is clearly wrong; they lie in the problem of enforceability. My first question is: why should there be a change in the law now, when we have managed without one for centuries? The answer lies in the development of the media. I am not just talking about the printed media—sometimes rather unfairly referred to these days as the “dead wood” or “dead tree” media—or the radio and television; we are now in the age of the internet and the social media.

In the past, it was relatively easy to monitor the media, and I suspect that the media were rather more deferential in their reporting of the private lives of individuals. As my hon. Friend the Member for Broxtowe has said, in the past, the reporting simply of a name and address would have been sufficient for many newspapers. Nowadays, we have the 24-hour rolling news service on radio and television that we all enjoy, although I am not sure that many politicians would use the word “enjoy” in connection with the demands of those news media. There is now an insatiable desire for more facts, of even the smallest nature, that can be released to keep the whole show on the road.

[James Morris (Halesowen and Rowley Regis) (Con)]

Is my hon. Friend saying that we should not seek to update the law to reflect those momentous changes in the way in which information circulates on social networking sites? Does he think that we should just abnegate responsibility for the content of the internet, saying, “Well, actually, the law can’t deal with this, so we should not seek to update it to protect the interests of the public”?

[Mr Nuttall]

My hon. Friend raises a crucial point. The difficulty that I have with the Bill is that I am not sure how enforceable it would be. I am not suggesting for a moment that we should not attempt to deal with the problem merely because it is difficult. However, because of the nature of the internet, it might not be possible for us sensibly to enforce the law in any meaningful way. The fact that the media in all their forms—particularly, in this context, the electronic media—publish the identity of an accused person has led to the Bill being brought to the House today. That is also what gives rise to one of the Bill’s potential flaws.

[Mr Spencer]

May I draw my hon. Friend’s attention to the weight that the public attach to a news report? If that report is on Sky News or the BBC, or in a newspaper, the general public will attach great merit to it and expect it to have been researched. However, if it has been posted on a social networking site by, say, my brother’s uncle’s mate’s niece, it will simply be viewed as gossip and will have no impact on someone’s ability to get a job in the future.

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[Mr Nuttall]

The initial release of such information could well come from someone who had seen their neighbour being taken away by the police in the early hours of the morning, and who had used a social media platform such as Twitter to tweet the news to their followers. Would their friends think, “This information has come from Fred, and I don’t believe it”? I suspect that their friends would think, “Yes, I do believe that.” One of those friends could be a journalist at Sky, who might think, “This has come from Fred, so it must be true,” and, within minutes, the information could be on Sky News. I am not sure that my hon. Friend’s scenario works.

[Philip Davies]

I tend to agree. Does my hon. Friend accept that when certain websites about which we know very little are competing with the more respectable end of the media and the press to report a particular case, people might choose to say, “I believe the stuff that’s on the BBC and in the newspaper that I read, rather than the stuff on that website”? If, however, there were no information about the case on the BBC or in the respectable press, the public would not be able to differentiate in that way, and they would have to accept that what they were reading on the website was true.

[Mr Nuttall]

My hon. Friend makes a good point. That raises the question of whether the BBC and the other outlets would then have to release a story denying what was on that website. These issues would all arise from the operation of the Bill. I referred to the case of someone who tweets that their next-door neighbour was taken away in the early hours by the police. Would that be caught by the Bill? I am not sure. The Bill has been released without explanatory notes, so I apologise if I refer to matters that might have been clarified in them.

How far must publication go before an offence is committed? Does one tweet count as publication, or is it only published when a neighbour passes it on or when the tweet is picked up by mainstream media? It is a minefield.

[Anna Soubry]

With great respect to my hon. Friend, one tweet would not amount to publication. Many statutes prohibit the publication, notably, of a child’s name. There is no difficulty with somebody tweeting a name. However, there is profound difference in publication. Such details can be thrashed out in Committee, but should not impede the Bill’s progress.

[Mr Nuttall]

I raise such matters for the very reason that they could be considered in Committee, and I am sure that they will be.

As the House will be aware, before an individual can be charged with a criminal offence, the police must consider whether there is a reasonable prospect of securing a conviction. That is far less onerous than having to decide on the civil law standard of balance of probabilities, or having to apply the test of “beyond all reasonable doubt” that will ultimately be applied by the court and, in more serious cases, by a jury. That raises the question of whether the Bill goes far enough. My hon. Friend the Member for Shipley (Philip Davies) referred to the fact that amending the Contempt of Court Act might be another way of dealing with the matter. In the case of persons who are arrested and subsequently charged, but for whatever reason the charges are dropped—whether because of new evidence coming to light, some other person confessing to the crime, or the prosecuting authorities changing their minds about the prospects of success—their identity would already have been revealed, so they would not benefit from the operation of the Bill.

We should ask ourselves this question: in this modern era, is it possible to afford any individual the protection that the Bill seeks to provide? Within minutes, any article published on an individual private website can spread to millions around the country and indeed the globe. I am conscious of the intervention made by my hon. Friend the Member for Broxtowe, and if one tweet does not constitute publication, how many tweets would do so? As with the spreading of rumour, that is the problem. Such people will have no knowledge of any media code of conduct or concern about the concept of genuine public interest, which we are discussing. They will be concerned not about legality, but about simply passing on an interesting titbit of information that has come their way. It is the modern-day equivalent of a good gossip over the garden fence.

As all Members will be aware, a rumour that has started to circulate is very difficult to stop, and the damage is already done. An allegation might damage a person’s reputation for the rest of their life, especially if it relates to child abuse or a crime of a sexual nature. For anyone who wishes to protect the identity of an arrested person, the challenge is how to prevent an individual who is in possession of the information about the suspect’s identity from passing on that information. The Bill would deal with publication but not subsequent dissemination, especially by social networks. In essence, it is virtually impossible for the House to pass effective legislation against the spreading of rumour. I doubt that it would ever have been possible, even in the past when rumours would have spread mainly, if not exclusively, by word of mouth. With the prevalence of the internet and the almost universal use of mobile electronic communication devices, such legislation would be virtually unworkable.

Clause 1 states:

“Where a person is arrested for an offence then neither their name nor address, nor any still or moving picture, of that person shall—

(a) be published in England and Wales in any publication available to the public in written, electronic or any other form; or

(b) be included in a relevant programme for reception in England and Wales”.

Immediately, we see another of the potential pitfalls and problems with the Bill, which can extend only to England and Wales. Consequently, we could have the bizarre situation in which a newspaper can publish in its Scottish or Northern Irish edition the full details and photograph of the arrested person, but not in England and Wales.

[Anna Soubry]

That is because Scotland continues, rightly, to have its own system of justice. The provision has been lifted from all the other Acts that deal with such issues. Exactly the same argument could be made about the Contempt of Court Act, which works extremely well to ensure that once somebody is arrested there is no prejudicial reporting. With great respect to my hon. Friend, the issue that he understandably raises is a red herring.

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[Mr Nuttall]

I am not sure whether my hon. Friend is saying that the law in Scotland would prevent such publication. Will she come back to me on that?

[Anna Soubry]

My point is that we have two co-existing systems of law that work well together. We have a Contempt of Court Act that prohibits prejudicial material being printed and published in this country, and it does not have an impact on Scotland in relation to any publications up there that prevent someone from having a fair trial. We already have laws that protect individuals after they have been charged, that ensure non-prejudicial trials and so on. All the Bill would do is extend that protection to people who are arrested.

[Mr Nuttall]

I accept that, but I still think that the Bill leaves open the possibility that media outlets will publish information outside England and Wales, although perhaps not in Scotland or Northern Ireland. There are international news agencies nowadays, and the Bill makes no reference to publication by foreign media outlets. It is fairly easy for anyone with access to the internet to access any foreign media publication. The identity of the person concerned might well be a secret to people in England and Wales, but billions of people around the planet would know exactly who that person was.

As well as the problem of how to control the worldwide media, another problem would almost certainly arise if the Bill were passed: that of piecemeal identification, which is apparently also known as “jigsaw identification”. Clause 1 would not prohibit the publication of any information at all about the arrested person; it merely prohibits the prohibition of the person’s name or address or

“any still or moving picture”.

So what will happen? One newspaper will publish, perfectly legally, the information that the suspect is a male, thus promptly halving the number of possible suspects. A radio station will then broadcast the fact that, although it cannot broadcast any information, it knows that the suspect owns a dog. Another newspaper will publish the fact that although it, too, cannot reveal any information, it does know that he is a prize-winning daffodil grower. We can see where this is going. It is clear that, taken together, those pieces of information will narrow the field of identification to a point at which it is possible to identify the person concerned. We will know everything about that person’s lifestyle, gender, age, hobbies and interests and even—possibly—workplace.

The whole of the protection afforded by clause 1 commences only when a person is arrested: in other words, when a police officer says to the suspect, “You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” The clause provides no protection before that point.

My hon. Friend the Member for Broxtowe said earlier that nowadays, because of the use of the Police and Criminal Evidence Act 1984, the old phrase “helping police with their inquiries” is used less frequently than it once was, but I think she would agree that in those circumstances the Bill would not cover people who were “helping police with their inquiries”, because they would not have been arrested. Anyone can, of course, choose to help the police with their inquiries, and if someone did so of his or her own free will, the Bill would offer no protection.

Clause 2 sets out the exceptions to the reporting restrictions specified in clause 1. As I said briefly earlier, my concern relates to paragraphs (c) and (d) of subsection (2), which refer to the ability of the person who has been arrested to make an application if

“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.”

The direction referred to is that given by a Crown court judge under clause 2(1)

“that section 1 shall not apply to a person who has been arrested where satisfied that such a direction is—

(a) required to comply with the Human Rights Act 1998;

(b) in the interests of justice; or

(c) otherwise in the public interest.”

It seems to me that it would be easier and, perhaps, better for the accused person if, rather than going down that route, he could simply sign a written statement to the effect that he was happy for clause 1 not to apply in his particular case. He could be afforded protection from some over-zealous and over-keen media outlet that wanted simply to push the piece of paper in front of him by requiring it to be witnessed by an independent legal adviser, who would have to certify that he had advised the accused person of the effect of giving up his rights under the Bill.

Clause 3 states:

“If any matter is published or included in a relevant programme in contravention of section 1, the following persons shall be guilty of a summary offence—

(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of publication in any other form, the person publishing the matter”.

Therein lies a potential difficulty. Although “publication” is defined in clause 7, which deals with interpretation, “publisher” is not. I submit that there could be some difficulty in establishing the identity of the publisher involved, especially in the case of an internet publication. The question arises of whether an internet service provider or a domain host would be caught by the provisions. I accept that the answer to that question may well be found in clause 4, which states

“A defence is available to a person charged under section 3 where at the time of the alleged offence they 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.”

In clause 5, the Bill goes on to provide for criminal penalties. I think that my hon. Friend the Member for Broxtowe said that she had a general aversion to creating new criminal offences, so I wonder whether she has considered whether the problem might have been addressed with a civil procedure and damages, rather than by creating another criminal offence.

[Anna Soubry]

It is right that the man in Bristol, for example, can use the civil courts in relation to what has been printed about him, should he believe—and I think that there is a good argument—that he has been defamed, and in due course he might receive damages. My argument, however, is that the damage has been done, so I am seeking to prevent publication in the first place. That is how we should cure the mischief, as we put it.

[Mr Nuttall]

According to clause 5, if someone is found guilty of an offence under clause 3, they are

“liable on conviction for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum”.

I am not sure what the statutory maximum is.

[Anna Soubry]

Six months.

[Mr Nuttall]

I do not know how much the maximum fine is.

[Anna Soubry]

I do not know off the top of my head the maximum fine in the magistrates court for a summary offence, but it will be in the range of thousands. I do not know what scale is used. We need the assistance of my hon. Friend the Member for South Swindon (Mr Buckland), who unfortunately is not in the Chamber at the moment.

[Mr Nuttall]

My hon. Friend will agree that a fine of that nature would probably not deter most international media outlets, but the threat of prison might do so.

[Philip Davies]

Does my hon. Friend not see great irony in the fact that, while we appear to be moving in the direction of letting lots of people out of prison, and allowing people to commit multiple burglaries and violent crimes without being sent to prison, the Bill could send a newspaper editor to prison simply for stating a fact?

[Mr Nuttall]

There is a risk that someone convicted under the measure could be sent to prison, as the Bill provides for that, and it is possible that it could happen to an editor. Clause 6 helpfully sets out exactly who might be affected, and applies

“if an offence under this Act is committed by a body corporate”.

If

“the offence is proved to have been committed with the consent of connivance of—

(a) a senior officer of the body corporate, or

(b) a person purporting to act in such a capacity,

the senior officer or person (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.”

Clause 3(3) provides the relevant definitions:

“In this section—

‘director’, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate,

‘senior officer’, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate.”

The term “manager” is rather vague, because there are lots of managers in an office, and we would not want all of them to be affected by the Bill. My hon. Friend the Member for Shipley is right that, theoretically, the editor of a publication could be imprisoned if their publication was found to have contravened its provisions.

[Anna Soubry]

My hon. Friend will be aware that a breach of the Contempt of Court Act 1981 can result in a maximum sentence of two years. The corporate bodies identified in my Bill are merely copies of what exists in other pieces of legislation without any difficulty, to make sure that when it is right and proper, the anonymity of certain people is maintained. I am sure that he will agree that it is not the Government’s intention to release from prison people who have repeatedly committed violent offences or who have repeatedly committed offences of dwelling-house burglary.

[Mr Nuttall]

I do not want to stray from the debate into the general subject of the prison population. Suffice it to say that the Bill would, if enacted, create an additional offence—we can all agree on that. The basis of enforcement would rest on the threat of sending individuals to prison, so there is a theoretical possibility of the prison population increasing.

My argument so far has focused on the impact of the internet and its role in media coverage. The matter was considered by the Government last year, following the suggestion that anonymity should be provided in rape cases. The report issued in November 2010 stated that anonymity for those accused of rape has implications for media reporting. We know that under section 2(3) of the Contempt of Court Act, media coverage of active proceedings must not create a substantial risk of serious prejudice to the case by unduly influencing jurors.

Concerns are often raised about such influence in high profile cases, some of which have been mentioned, so I will not refer to them again. Legal judgments about whether media coverage amounts to such strict liability as contempt are usually based on what is called the fade factor—the idea that media reporting is less likely to affect the jurors, the further away it is from the trial. One of the ways that we could consider to right the perceived wrong is to reduce the fade factor, and give a definition in law to try to eliminate it as a factor to be taken into account in contempt cases.

The availability of rolling 24-hour news on demand presents new challenges to media coverage of criminal cases. When a jury is sworn in, the judge will often tell jurors not to look for information about their case on the internet, and will repeat at the end of each day that they are not to go on the internet and make inquiries into the case. Nevertheless, the internet exists, the explosion in its use is likely to continue, and therein lies the greatest difficulty in trying to enforce such a Bill. I shall now allow others to contribute to this important debate.

--- Later in debate ---

[Philip Davies]

My hon. Friend is right. There is the added complication that the law might be applied differently depending on the characters of the individuals who happen to hold the positions, so there is scope for tension.

[Mr Nuttall]

Regardless of the outcome of the debate on the extent of the Contempt of Court Act, one thing of which we can all be sure is that it does not apply to Australia, for example. The Australian, which is on sale in newsagents in London, could easily publish the kind of information under discussion.

[Philip Davies]

My hon. Friend is absolutely right. One need only visit any newsstand in London to see a huge number of foreign newspapers being sold. Because they are being sold in this country, those editions might well be covered by the Bill—