Policing and Crime Bill

Lord Marlesford Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

Moved by

[Lord Marlesford]

182: After Clause 152, insert the following new Clause—
“Anonymity before charge
(1) Section 37 of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge) is amended as follows.(2) After subsection (10) insert—“(11) Where a person is accused of an offence but has not yet been charged, or has been released without charge (with or without bail), no matter likely to lead members of the public to identify them as the person who has been arrested for an offence shall be published or otherwise disclosed in England and Wales, except where subsection (12) applies.(12) This subsection applies where a magistrates’ court is satisfied that it is in the public interest to publish or disclose information of the kind described in subsection (11), and the court makes an order to that effect.””

[Lord Marlesford (Con)]

My Lords, in moving Amendment 182 on anonymity before charge, I refer to an earlier amendment which I moved in Committee on 2 November. It proposed substituting “lack of evidence” for “insufficient evidence” when police communicate a decision not to charge. Eight noble Lords spoke in support and I have now had the Minister’s letter of 1 December saying that the Government agree to replace the phrase “insufficient evidence” with revised wording which will be incorporated in fresh guidance, to take effect by next spring. However I am afraid that their suggestion of the words,

“the case failed to reach the evidential test”,

does not quite hit the spot. Frankly, “no case to answer”, would be better but that is probably a discussion for another day.

I am glad that the Government listened to the Committee. I am grateful to the Minister for using her influence on the Home Office. I hope she will do so again, after this debate. The matter is really very simple. There have, particularly in recent years, been a number of instances when the police have released the names of suspects or publicly identified them at a very early stage in their investigations into allegations and complaints, particularly of sexual impropriety. A most notorious example was on 14 August 2014 when the Yorkshire police arranged for the BBC to film and broadcast their entry into the house of the pop star Sir Cliff Richard. Sir Cliff must have gone through hell before it was eventually accepted that he had no case to answer.

There are many other examples. We may remember the wholly inappropriate way in which, on 3 August 2015, a superintendent of the Wiltshire police posed for television cameras in front of Sir Edward Heath’s final residence in Salisbury, encouraging people to claim that the former Prime Minister had misbehaved with children. The superintendent was launching an investigation on which the Wiltshire police have now spent over £700,000 of taxpayers’ money, with the chief constable of Wiltshire apparently determined to continue his fishing expedition indefinitely.

The method of fishing adopted by Wiltshire police seems to vary between the utterly naive and the patently absurd. I have been told by a former member of the Downing Street staff that they were contacted by one of the investigating officers, who asked, first, whether they had noticed any untoward incidents at any time in the behaviour of the then Prime Minister and secondly, whether they had noticed any young men slipping in and out of No. 10 Downing Street. Surely the Wiltshire police and crime commissioner has a role in pointing out the opportunity-cost of this farce and guiding the chief constable on priorities in the use of limited police resources.

In Committee a number of noble Lords raised this issue of the police being free to name suspects and the Minister is on record as saying that,

“it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect”.—[Official Report, 16/11/16; col. 1466.]

My response to that is simple. Searching a house is an operational matter, on which the police must make a judgment. However, to search a house they have to obtain a magistrate’s warrant before they do so. Indeed, the centuries-old requirement for a search warrant forms part of the fundamental protection of our liberties, under both statute and convention, which has its roots in Magna Carta.

The impact of modern social media means that naming suspects is a powerful weapon; indeed, sometimes even a lethal one. I am not saying that it is never sensible for suspects to be named, sometimes even at a very early stage in an investigation. In sexual cases, or cases of fraud, for example, it may be necessary for there to be publicity that will encourage other victims of the alleged offenders to come forward. Indeed, the media have always had an important role in exposing allegations in the pursuit of justice. However, the media have to follow court directions restricting reporting—and they do so.

Hitherto it has been left to the police to make a judgment on whether to name a suspect. However, it has now been shown that all too often the police cannot be relied on to make the right judgment. In their recent decisions on naming suspects they have aroused much public resentment and indignation. This has resulted not only in often irreparable damage to the reputation of innocent persons but undermined confidence in, and therefore support for, the police.

History teaches us the need for vigilance in the defence of liberty. In September 1793, at the height of the reign of terror during the French Revolution, the so-called Committee of Public Safety passed the Law of Suspects, which meant that suspects, once named, could be put under the guillotine without any trial. This continued until July 1794, when Robespierre himself was guillotined. We are a million miles from that. But the road is the same and we must not take a single step along it. It is to halt and, indeed, remedy an unacceptable situation that I am advocating the urgent need for a check on the exercise of unsupervised police powers to publish the names of suspects. That is why in Amendment 182 I propose that the police should be required to obtain a magistrates’ warrant before publishing the name of a suspect who has not been charged. I realise that my amendment as drafted may not be the full answer, but I am anxious that the Government should address what has become a serious problem. I look forward to hearing the views of other noble Lords and, of course, of the Minister. I beg to move.

[Lord Paddick]

My Lords, we have Amendment 187 in this group but, before I address that amendment, I would like to speak briefly to Amendment 182. In Committee, some noble Lords asked why sexual offences should be a special case when it comes to pre-charge anonymity. Amendment 182 addresses that question by including all offences. However, there are three reasons why we cannot support this amendment. As I will set out shortly, not only do we believe that sexual offences are a special case, but the law acknowledges that they are a special case in which the normal principles of free speech and open justice are restricted. We believe that these are important principles that should be restricted only in those cases where there are specific reasons for doing so. In sexual offences cases alone, the identity of the complainant or victim is protected. For similar reasons, we believe that the identity of the accused should be protected up until the point of charge.

Secondly, in Committee, we also heard compelling reasons why the accused should be able to lift the ban on publicising his identity, if he wishes. The accused may wish to complain at the injustice of his case or appeal for alibi witnesses to come forward, for example. Amendment 182, as drafted, would not allow that.

The third reason is that we do not believe the magistrates’ court is the right place for such a decision to be made. We believe that such an important decision should be considered by a judge of a higher court.

Amendment 187 is substantially different from the amendment we moved in Committee in a number of respects. First, it is as close as possible to the wording of the legislation that currently protects complainants or victims in sexual offences cases. Secondly, it allows the accused to lift pre-charge anonymity at any stage if he wishes to do so. Thirdly, as well as specifying the minimum rank of police officer who can make an application, and the Crown Court as the appropriate court for hearing an initial application from the police for the ban to be lifted, it would specifically require the judge to have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences committed by the accused. We believe that such cases will be rare and such applications will be exceptional, as I will explain.

We had a long debate on this issue in Committee, and I do not want to make my case again as it is a matter of record. However, I want to address the remarks made by other noble Lords in that debate, having had an opportunity to reflect on what they said. I will address head on, and at an early stage, the shocking picture that is emerging of allegations of historic child abuse at football clubs. Most of the initial allegations that attracted so much publicity, and gave rise to the unprecedented number of further allegations being made across the length and breadth of the country, involved the former football coach Barry Bennell. Bennell was convicted of sexual abuse offences in the United States in 1994, and convicted of further sexual offences in the United Kingdom in 1998, and again in 2015, for which he served terms of imprisonment. These are not cases where pre-charge anonymity would have had any adverse effect. Indeed, I suggest that these cases point to a change in culture where victims of sexual abuse are more willing to come forward. Therefore, they undermine to some extent an argument against pre-charge anonymity on the grounds that victims need to be given confidence to name people who have been accused but not yet charged.

The noble Lord, Lord Pannick, made this point in Committee—that publicity can lead others to come forward with supporting evidence that helps to make the case against a person who is rightly accused. But what if somebody is not rightly accused? What if somebody like Nick comes forward and makes highly damaging and groundless allegations against individuals? Is it right that these allegations and the identity of the accused are put into the public domain? How do we safeguard against others coming forward with similarly damaging and groundless allegations, particularly when the details of the allegations are made public? There is a view that the law on similar fact evidence has gone too far and that this can result in convictions based on multiple uncorroborated allegations, all of which could be false. I am not legally qualified to comment, but surely a balance needs to be struck between shoring up uncorroborated allegations by trawling for others and protecting the reputation of the accused.

--- Later in debate ---

[Lord Marlesford]

My Lords, there are two differences between my amendment and that of the noble Lord, Lord Paddick. The first is that the noble Lord, Lord Paddick, suggests that a judge should arbitrate on the question of anonymity. The second is that the noble Lord, Lord Paddick, restricts his anonymity to sexual offences of various sorts. I give way at once on the question of who should deal with the anonymity. It is probably too complicated and difficult to be done by a magistrate and the point made by my noble and learned friend Lord Mackay of Clashfern about warrants probably not being justified in two of the cases we mentioned is a good one. On that I would certainly be ready to change my amendment.

On the question of whether it should apply widely or merely narrowly to sexual offences, I will give three examples of why it should apply widely. First, I was struck by the recommendation of the noble and learned Lord, Lord Morris of Aberavon, on the benefit of it being wider. Secondly, my noble and learned friend Lord Mackay of Clashfern was attracted by that. So, too, were my noble friend Lord Hailsham and the noble and learned Baroness, Lady Butler-Sloss. I will just give three examples of why that should be the case.

My noble friend Lord Lamont mentioned the case of Mr Jefferies of Bristol, whose whole life was traduced and ruined. It was nothing to do with sex; it was to do with a case of murder. If ever there was an example of somebody who should not have been named in the way that he was, it would be him. The noble Lord, Lord Carlile, mentioned care homes. Abuse in care homes, even in children’s homes, can be of a non-sexual nature. It can be malicious or psychopathic. There have been many cases also of accusations of abuse of the elderly in care homes. So I do not see the justification for saying that anonymity—whether or not we have it—should be confined only to sexual offences. If there is to be anonymity, it should be for all offences—but clearly the procedures and rules are inadequate at present and should be modified and considered.

I am afraid that I would not regard the College of Policing as the obvious candidate to rewrite this book. I would have much preferred something more serious. But I would be happy to withdraw my amendment on the basis that the Minister will come back with something rather more substantial on the need for reform—something not to be put forward in detail but to be expressed as an intention at Third Reading. I would not vote for the amendment of the noble Lord, Lord Paddick, merely because I think it is quite wrong to limit it to only sexual affairs. I beg leave to withdraw my amendment.

Amendment 182 withdrawn.