Anonymity (Arrested Persons) Bill [HL]

Lord Campbell-Savours Excerpts

2nd reading (Hansard): House of Lords
Friday 1st March 2019 Lords Chamber

[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?