Anonymity (Arrested Persons) Bill

Nigel Evans Excerpts

Friday 4th February 2011 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

I shall begin with the usual courtesy of congratulating my hon. Friend the Member for Broxtowe (Anna Soubry) on her success in the ballot and on introducing a proposal that has produced an interesting and thought-provoking debate. I applaud in particular her commitment to this issue, which is founded on a depth of relevant experience and genuine concern about the damage that inappropriate or excessive media coverage can do under certain circumstances. Very few hon. Members have her combination of qualifications and experience to address the issue with such authority, so it is not surprising that her success in the ballot should result in her introducing this Bill.

Before I come to the substance of the Government’s position, I shall reflect on the debate. We heard an admirably concise contribution from my hon. Friend the Member for Carshalton and Wallington (Tom Brake), who made clear his support for the Bill. My hon. Friend the Member for South Swindon (Mr Buckland) made his usual learned contribution on the law in this area, and made an excellent contribution to our debate. My hon. Friend the Member for Sherwood (Mr Spencer) is no longer in the Chamber, but he made it clear that the subject ought to receive consideration. Indeed, it received such consideration from my hon. Friend the Member for Bury North (Mr Nuttall), who made what I understand is his usual contribution to the examination of matters on a Friday.

The Opposition spokesman, the hon. Member for Stoke-on-Trent South (Robert Flello), made clear his concern about the Bill. On reflection, he may reconsider the wisdom of taking interventions from my hon. Friend the Member for Broxtowe in future. We saw the first part of his argument exploded because of his misunderstanding of the Worboys case. Rather unwisely, he decided to take a another intervention on the point that he was making about the role of a bereaved family in an active case and the possibility of them having direct influence on the issue. My hon. Friend the Member for Broxtowe delivered a one-two to the hon. Gentleman. I hope that I shall not provoke her too much in the course of my remarks, or ever find myself on the wrong end of a cross-examination by her if she returns to being a barrister.

My hon. Friend the Member for Shipley (Philip Davies) made an admirably liberal contribution—wholly commendable though, from my point of view, marginally unexpected, and with admirable regard for the need to respect the fiscal position of the Government and the taxpayers’ interest. He, like the hon. Member for Stoke-on-Trent South, made clear the attachment to the principle of open justice. I noted the attachment of my hon. Friend the Member for Shipley to full transparency, public knowledge and the need to avoid

“inaccurate and uninformed comment about proceedings.”

I may return to that later.

As my hon. Friend the Member for Broxtowe explained, her Bill aims to protect members of the public from media reporting where they have been arrested but not charged with an offence. This proposal responds to public concern about an issue highlighted in a recent high-profile case. Clearly, the Bill touches on a controversial area of law and policy, with potentially wide implications for the way in which our press, our courts and our wider justice system work. It is the sort of area that, I am sure Members will agree, needs to be approached with some caution, forethought and careful deliberation.

With that in mind, I want to respond to my hon. Friend’s proposals in a thorough and structured way. I will look first at the current legal position, which is more complicated and detailed than is sometimes realised. I will examine in more depth previous proposals to change the law, which are highly relevant to the Bill. These include previous measures explored by the coalition to address the vexed issue of anonymity in rape cases. I will then turn to the substance of the matter—the general issues raised by the Bill, and its evidence base. In conclusion I will say a little about its detailed contents and make the Government’s position clear.

Let me say now that we do not at this time think that we can support a statutory prohibition on the reporting of arrests pre-charge, but I will go on to say what measures we will be taking, and I hope that they will provide my hon. Friend and her supporters with a degree of comfort.

Under the present law, the media are broadly free to report the identity of suspects at all stages of the criminal process—when they are under investigation, when they are arrested, and when they are charged. The media are free also to report criminal trials, subject to a range of statutory and common-law reporting restrictions, which are designed to protect the integrity of criminal proceedings. There are protections in the law to try to stop individuals being pilloried in the press, including libel provisions and, where comment may be prejudicial to any future proceedings, contempt.

Taken together, these arrangements reflect our long and proud common law tradition of open justice and article 6 of the European convention on human rights, which guarantees the open justice principle. In its words, in

“the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly”.

However, article 6 permits exceptions to the general rule of open reporting, as follows:

“the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

It has long been the statutory position under our law in cases involving national security, for example, that the judge has the power to exclude the public and media from the courtroom during the trial.

There have been a number of proposals for changing the law in modern times, and this is one of those areas of recurring interest to Parliament. The real starting point was section 6 of the Sexual Offences (Amendment) Act 1976, which granted anonymity to defendants in rape cases. Of course, that measure applied only after charge, whereas the present Bill would grant anonymity between arrest and charge. The 1976 Act does, however, usefully flag up at the outset the fact that different options are available where the timing of the anonymity is concerned, and I will return to that subject later.

The 1976 Act’s provisions were duly repealed in 1988 and one has to jump forward 11 years, to 1999, for the next important developments. In that year the previous Administration enacted the Youth Justice and Criminal Evidence Act 1999, section 44 of which imposed anonymity at the pre-charge stage to persons under 18 years old who are involved in criminal investigations, including suspects. Thus, the 1999 Act provides a statutory precedent to the measures in the Bill—a precedent expressly limited to children and young persons—but it is also important to understand that this legislation has never been brought into force.

It was also in 1999 that I introduced the Sexual Offences (Anonymity of Defendants) Bill. As I reminded the House last summer, I have some form in this area. My hon. Friend the Member for Broxtowe referred to it, but in the context of the debate about rape anonymity, and as I will come to reflect on, we have proposals that achieve the objective that I set out in the Education Bill that is before the House. The purpose of my Bill was to protect teachers from the consequences of accusations by children who have anonymity, and from the subsequent reporting of such allegations. As some hon. Members may recall, my Bill was prompted by the suicide of a constituent, Nick Drewett, a teacher who took his own life after being accused of behaving improperly with pupils in his care. This was a tragic example of the cost of unfounded allegations. The headmaster who was accused alongside him was subsequently acquitted. My experience here is one reason why I am delighted that the coalition is bringing forward legislation to deal with the problem of false allegations against teachers.

The subject was then debated in great depth during the passage of the Sexual Offences Act 2003. Even before those debates developed, the Home Affairs Committee had recommended granting pre-charge anonymity to suspects in sexual offence cases. It will be noted that on this occasion the anonymity would have dealt with a narrow class of offences where there was thought to be particular difficulty—namely, sexual offences—and would not have applied to all criminal offences as the present Bill does.

The subject was debated in very great depth in this House and in the other place during the passage of the Act. As I hope some hon. Members will recall, matters began on that occasion when the Cross Bencher, Lord Ackner, the late former Law Lord, tabled an amendment to the Sexual Offences Bill in the other place. Lord Ackner's view was that defendant anonymity in rape cases had worked well between 1976 and 1988. He had, as he said,

“heard nothing to suggest that during those 12 years there were occasions when it worked to the disadvantage of justice. I have not limited my request to pre-trial because pre-trial is only part of the issue.”—[Official Report, House of Lords, 2 June 2003; Vol. 648, c. 1095.]

The anonymity proposed by Lord Ackner would, in terms of his amendment, have been the same as that enjoyed by the complainant. It would therefore have applied from the point of the allegation for life, unless of course the defendant was convicted.

There was then, as I say, considerable debate in both Houses, not least about the point at which the anonymity should apply, pre or post-charge. The Government of the day accepted the desirability of pre-charge anonymity in sexual offence cases in principle, but preferred a non-legislative solution. Concerns raised during the passage of the Bill about media reporting in certain cases did not lead to a substantive change to the editors’ code of practice, which continues to contain no steer against pre-charge reporting of the identity of those suspected but not charged. The media’s guidelines accordingly differ somewhat from the approach taken in the guidance from the Association of Chief Police Officers, which makes it clear that police officers should not normally disclose the identity of suspects under investigation. That remains the position today. There has been some development in that guidance. ACPO’s media advisory group produced clear guidance and advice in December 2000 and in 2002, paragraph 1.1 of which states:

“Generally people under investigation should not be named but they can and will, with certain exceptions, be identified once they have been charged. This approach balances the principle of open justice with the rights of the individual to privacy, a fair trial and damage to the reputation of an individual if no charge is made against them”.

ACPO, in conjunction with the media, has produced an updated statement on the position today. It does not contain that paragraph, but that is because it is really a statement of what the position is. I have been careful to take advice and want to make it clear that the guidance to police remains exactly as it was in 2000 and 2002.

Most recently, our coalition programme for government contained two commitments on anonymity: first, to extend anonymity in rape cases to defendants; and, secondly, to give anonymity to teachers accused by pupils and to take other measures to protect against false allegations. The first was of course the subject of much debate inside and outside the House, and the question of the timing of anonymity in criminal cases again came to the forefront, as did the kinds of offences to which anonymity might apply.

Very properly, the examination in Parliament of our coalition agreement proposal helped to trigger a careful re-examination of the evidence base for the proposition set out in the election programmes of both coalition parties, and the role of my hon. Friend the Member for Broxtowe in that debate was not insignificant, as was made clear in her excellent speech of 8 July. It was a very good debate, showing the House at its best. Using the resources of the excellent team of analysts in the Ministry of Justice, we reached the conclusion, which I announced to Parliament on 12 November, that the evidence base was not strong enough for the Government to proceed with the proposals.

However, our commitment to giving anonymity to teachers is being taken forward in the Education Bill, which I hope Members on both sides of the House will welcome. On that subject, we have said:

“We will give teachers the strongest possible protection from false accusations. We will give anonymity to teachers facing accusations from pupils. This Government want to put an end to rumours and malicious gossip about innocent teachers which can ruin careers and even lives.”—[Official Report, 7 July 2010; Vol. 513, c. 12WS.]

In the case of the Education Bill, the anonymity will apply from the point of allegation to the point of charge, so again there is a difference from what my hon. Friend’s Bill proposes. The anonymity set out in the Education Bill applies to only a limited range of offences that are particularly likely to attract false allegations against teachers. Again, that represents quite a difference from my hon. Friend’s Bill.

Having summarised the somewhat convoluted background, I believe that it casts important light on the Bill in a number of areas. First, there is the question of the evidence base. Some people will no doubt argue that recent events, about which I will make no specific comment, prove that there is a case for replacing media self-regulation in this area with a statutory prohibition, such as that set out in the Bill. My hon. Friend herself has been quoted in the press as saying that

“since the media don’t seem able to regulate themselves, Parliament should do something about it”,

which puts the point with commendable directness.

I urge a degree of caution. The Government only recently withdrew our commitment set out in the coalition programme to grant anonymity in rape cases to defendants, having discovered on closer examination that there was insufficient evidence either for or against the proposal. That ought to alert us to the sensitivities of intervening in this area. We need to be a little wary of assuming that individual hard cases, as my hon. Friend the Member for Christchurch (Mr Chope) said, however hard or egregious they might seem, constitute evidence of a widespread or pressing social problem sufficient to justify interference with long-standing freedoms.

This country has a long and proud tradition of media independence, an important part of which is self-regulation. It is not impossible to question how effectively that self-regulation is operating, but we should not interfere with it lightly. Any interventions on the subject need significant reflection and widespread consultation, and they should proceed as far as possible on the basis of consensus.

Secondly, it is noticeable that, compared with previous initiatives, the Bill imposes anonymity on an all-crime basis, applying to all criminal offences alike, including purely summary offences. That represents a departure from the view, evident in previous proposals, that anonymity may be justified only to address specific difficulties—for example, where particular kinds of offence are concerned.

Thirdly, on timing, the Bill applies the anonymity from the point of arrest to the point of charge only. That interesting approach has received little if any attention in the past, and I shall reflect on the detailed contents of the Bill by looking more closely at the issue of timing.

As my hon. Friend the Member for Broxtowe has explained, the Bill’s intention is to impose a general restriction on reporting from the point of arrest to the point of charge. The choice of the point of arrest as the starting point for anonymity means that a person who attends the police voluntarily for interview will not be subject to reporting restrictions, whereas there will be a media blackout for a suspect who is arrested. At first sight, the comparison is a little worrying, and it certainly prompts further thought.

Perhaps more importantly, as I have noted, the Bill prohibits the reporting of any arrested person’s identity, whatever the offence, without a court order. That is perhaps the greatest question raised by the Bill’s contents: whether there should be a prohibition on purely factual reporting merely by virtue of the fact that it concerns an arrest. There is clearly an argument that, in some cases at least, the media should have the right to report the facts unless there is a court order to the contrary. Again, we would like to reflect further and deliberate fully ahead of taking action on a clear issue of general principle.

I commend my hon. Friend for the safeguards that she has incorporated in her Bill. Clause 2 enables the restrictions to be waived either by the court itself or on an application by the person who has been arrested, the police, a prosecutor or any other person with a sufficient interest, which we take to include the media. That helps to address the admirable liberal arguments that my hon. Friend the Member for Shipley (Philip Davies) advanced in an intervention concerning potential police access. I am looking to see whether he is in his place, but he is not, which is a shame, because I have one or two things to say about another of his interventions, in that case on our hon. Friend the Member for Bury North, which was not quite as helpful or as accurate.

Reflecting on the determination of my hon. Friend the Member for Shipley to avoid inaccurate or uninformed comment about proceedings, I want to put on the record the fact that his statement about the Government being in the business of releasing prisoners before they have ended their sentence is wholly and woefully inaccurate. He has misunderstood the admirable speech in June by my right hon. and learned Friend the Lord Chancellor, who made clear the inefficacy of short sentences in rehabilitating offenders. It led him to the conclusion that we would not have short sentences at all and all those people would otherwise be released. That is wholly and woefully wide of the mark.

If one is going to try to avoid—in some circumstances—short sentences, one is going to be taken in two directions. One will need more effective community punishment, with more public confidence in the idea that people can be punished effectively and rehabilitated more effectively in the community; but at the same time one might need longer sentences, particularly for the sort of people to whom my hon. Friend referred. That does not mean I spend my time in the Ministry of Justice signing Executive release orders to drive the prison population down. That is not the case.

We estimate that by the end of this Parliament the prison population will be 3,000 lower than it is now. I want to make it clear that that is an estimate, not a target. This Government will continue to incarcerate those whom the courts send to prison. I hope that that clarification will serve my hon. Friend well when he reads it in the record, and that we will not hear any more of the inaccurate nonsense suggesting that our proposals on offender management—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I have given the Minister a bit of latitude, but could he now get back to the Bill?

[Mr Blunt]

I am extremely grateful, Mr Deputy Speaker. Given that our policy is so widely misrepresented, I intend to take every opportunity to make it clear what our actual policy is until not only am I bored rigid by it, but so is everybody else.

My hon. Friend the Member for Shipley expressed concern about the cost to the courts and the Prison Service of all the people who would be arrested and locked up under the proposals of my hon. Friend the Member for Broxtowe. I am happy to say that that is not one of the Government’s objections. However, these are very difficult times economically, and we would want to consider carefully the practical implications of the application procedure and whether the Crown court or the magistrates court would be the appropriate venue.

The criteria for lifting the restrictions on a case-by-case basis, as set out in clause 2, are very broadly drawn. They would enable the restrictions to be lifted on human rights grounds, in the interests of justice, or in the public interest. The fact that the exceptions to the reporting restriction are so broadly drawn highlights once again the central question of principle—that of whether the default position of a prohibition on factual reporting is the right one. Again, we would like to reflect further on that.

Turning to the territorial extent of the provisions, the Bill would apply to England and Wales only. This point was made by my hon. Friends the Member for Bury North and for Carshalton and Wallington. The more usual position is for legislation imposing reporting restrictions to apply on a UK-wide basis. It is a question of enforceability, as we heard repeatedly during the debate, and also of policy consistency between the three jurisdictions.

Clause 3 raises the interesting question of consent. It would require the Director of Public Prosecutions, the director of the Serious Fraud Office or the director of Revenue and Customs Prosecutions to give their consent before anybody could be charged with an offence under the Bill. Other legislation gives the power to consent to certain highly sensitive prosecutions to the Attorney-General, and the coalition would need to take its own view on which the appropriate consenting authority should be.

In summary, I warmly welcome the debate that this Bill has prompted on a matter about which I recognise there has been recent public concern. However, I think that Members will not be surprised to hear my overall conclusion. Largely for the reasons I have set out, I regret that the Government are unable to lend the Bill their support. This is, in part, a matter of the detail of the proposals, be it on timing or on the precise nature of the safeguards. More substantively, it prompts the question of whether the use of legislative solutions is the right answer or whether more proportionate approaches are available.

I know that my hon. Friend the Member for Broxtowe shares my concerns about the quantity of legislation that has been passed here in the past 13 years. There have been 21 criminal justice Acts of one sort or another in that period. Of all the people in this House, my hon. Friend, as a former practising criminal barrister, will have been the victim of all the changes imposed on the law and will have kept up to date with it. I am sure that she would wish it had been otherwise.

The question was posed as to how many thousands of new criminal offences have been created in the past 13 years. I fear I must tell the House that there have been so many thousand new criminal offences coming from so many different Government Departments of one sort or another that it is difficult to get a wholly and reliably accurate answer about the exact number that have been put on to the statute book. It is tricky getting it to the nearest one or two when there are so many thousands, particularly as they come from all sorts of different legislation brought to Parliament by several different Departments. I am reminded of St Bernard’s maxim, “The road to hell is paved with good intentions.” Perhaps another relevant aphorism is, “Legislate in haste, repeal at leisure.”

Although I thank my hon. Friend for airing these issues, we cannot support them today. What is at stake is the balance between competing interests and we need to get that right. I support the idea that we need to avoid unfounded slurs and speculation damaging the lives of innocent people. Punishments before and without trial are wrong. Equally, the media have raised the prospect of a world of

“secret arrests and anonymised justice”.

That is not where we would like to end up either.

What I can say, which I hope will offer a degree of reassurance to my hon. Friend, is that the Government do not intend to ignore the issues she has raised. We intend to consider whether the laws on contempt and pre-charge reporting contain gaps that may impede justice. I note the contributions of my hon. Friends the Members for Bury North and for South Swindon on the operation of the Contempt of Court Act. The laws on contempt and pre-charge reporting merit further consideration because of the complexity of the regulation in this area and the interests that need to be balanced carefully. This debate is important enough to deserve clarity, not confusion. That may take some time. I know that there are strong views on all sides of this debate and I look forward to debating them further in due course, having had the benefit of further consideration by the Attorney-General.