Anonymity (Arrested Persons) Bill

Robert Buckland Excerpts

Friday 4th February 2011 Commons Chamber

[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have their name and address published, but all the highly prejudicial material that we saw in the Bristol case would not be published because, in effect, it would be in contempt.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.

[Mr Robert Buckland (South Swindon) (Con)]

My hon. Friend makes her case very powerfully. Two things strike me about the Contempt of Court Act. First, it is 30 years since it was passed, and that is a long time in terms of criminal justice developments. The length of time between arrest and charge and trial has got longer and longer, so there is an issue about understanding what “active proceedings” means. Secondly, proceedings under the Act can be brought only with the leave of the Attorney-General, which is a time delay and a fetter on the discretion of individual trial judges.

[Anna Soubry]

I am grateful for that intervention by my hon. and learned Friend. I am sorry—he is not actually learned, although he is certainly an hon. Friend. He used to be learned, and is undoubtedly a far better lawyer than I am, as we have just heard. He makes the point far better than I have been making it.

The last thing that anyone wants—including Conservative Members—is more criminal offences. I do not want to make party political points, but there was an abundance of criminal justice legislation under the previous Government. I think that 44 such Acts were passed, and goodness knows how many thousands of new criminal offences were created. I am keen not to add to that burden. However, I am very keen that we sort out this problem. In yesterday’s debate about legal aid, my hon. Friend the Member for South Swindon (Mr Buckland) pointed out that in this country we prosecute 1 million more people than other comparable countries, so there is a good argument that we prosecute too much, perhaps because we have too many criminal offences—I know not. I am also keen to try to ensure that we, as a nation, spend less money, not more, and inevitably when we create new criminal offences there is a danger of spending more money.

I urge the House to support the Bill because I want this problem to be solved once and for all. I am getting to the stage where, frankly, it does not bother me so much how it is done, just as long as it is done. I would like the media to regulate themselves, but for reasons that I hope I have explained, that is unlikely.

I want to make a couple of points particularly to the Minister. This issue will not go away, whatever the outcome of the Bill. It is important that we remind ourselves that the Government are laying before this House the Education Bill, which will make it an offence for the name of a teacher to be published, following an allegation from a pupil, until such time as they are charged. It seems as though we have accepted that we have a problem that needs tackling and sorting out and the Government have already seized the nettle, so even if I am not successful today, I will have another opportunity when that Bill comes before the House. There is also the sentencing legislation that will inevitably follow. It is perhaps ironic that the Government, rightly, want to give anonymity to teachers in the circumstances I have described, and yet there is an ex-teacher in Bristol who has been afforded no protection from the vilification and feeding frenzy that we have all witnessed in recent months.

I thank everybody who has sent me an e-mail, written to me or supported me in other ways in introducing this Bill. In particular, I thank hon. Members for their advice and support. I commend the Bill to the House, and I hope that it can make progress today.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

I am grateful for the opportunity to speak in support of my hon. Friend the Member for Broxtowe (Anna Soubry), who has introduced this Bill at an important moment in the development of our media.

So far, the debate has concentrated, quite properly, on press and print journalism, whether in the form of the local newspaper that we read every day or the web pages of such newspapers, which are read increasingly widely. Therein lies the important development—the internet. The internet has had an effect not just through local newspaper websites, but through Facebook, Twitter and the myriad ways in which individuals can share and disseminate information, and spread false information. Therein lies the problem.

I have said before in this place that the issues relating to reporting restrictions go wider than those of justice and move into the area of media and communications, which is the province of the Department for Culture, Media and Sport. Although it would be Canute-like to try to hold back the tide of the internet, we have a lot of work to do with local press, national media and networking sites such as Facebook and Twitter to get a degree of consensus about when it is inappropriate to allow the spread of misleading and false material. The Bristol case is but the latest and most extreme example of the mischief that my hon. Friend seeks to cure. None of us has all the answers on how to deal with the proliferation of modern media, but we have to acknowledge that it lies at the heart of this matter.

In my view, the Bill goes some small way to resolving what is an entirely grey area: the stage between arrest and charge. The current situation is mixed. Hon. Members have pointed out that we have the Contempt of Court Act 1981, and I will come back to that in a moment. More relevant to the stage between arrest and charge is the police guidance. The police guidance on the naming of adult suspects is simple. The police will not usually name a suspect until charge, but it remains a matter for individual discretion. In other words, there are no hard-and-fast rules. It is not advisable to name a suspect, but sometimes there will be good reason to do so.

The Bristol case is significant, because the police never confirmed the name of the man who had been arrested. The information reached the media by different means. That relates to my first point about the viral spread of alternative media and means of communication.

[Philip Davies]

Of course, the other law that is in place to protect people is the law of libel, which prevents people from spreading untrue allegations. Is not the hon. Gentleman’s first point about the power of the internet one of the reasons why the Bill is flawed? In practice, the restrictions in the Bill would apply to newspapers, the broadcast media and perhaps some of the more responsible aspects of other media, but there would be no way of effectively controlling what was put out by websites based abroad—they are based all over the place.

[Mr Buckland]

I readily concede that my hon. Friend makes an important point about the practical implementation of the legislation. The Bill goes as far as it can to deal with the mischief. His point is sadly common in issues relating to the misuse of media. There are issues with cybercrime and with the use of internet sites that are based in far-flung places abroad, over which we have no control. This week, I heard about a nasty little website that deals with gossip among schoolchildren, which is based in Belize. It has caused a lot of misery for our schoolchildren, yet it seems that there is little we can do about it. My hon. Friend therefore makes a fair point about the natural limits of jurisdiction.

[Mr Spencer]

What sort of weight does my hon. Friend think the general public attach to such information? Would they consider a report on the BBC or in a newspaper as factual but a report on a social networking site as perhaps not based in fact?

[Mr Buckland]

My hon. Friend is right to put a high degree of faith in the judgment and good sense of ordinary people in making the distinction between what they would see as authoritative sources of information and the sort of tittle-tattle that fills far too many social networking sites. A judge giving a direction to a jury can deal with such mischief and, if I may say so, my hon. Friend sounded a little judicial in his intervention, because I can imagine a judge saying to a jury at the beginning of a trial, “Please disregard any gossip you may see on websites. Don’t tweet. Don’t look at Facebook. Disregard all those websites.” There is a great difference between information and knowledge.

[Mike Freer]

I am not a lawyer, so I do not profess to know the technicalities of the difference between information, gossip and libel, but can my hon. Friend confirm that the written media carry much more weight than the internet?

My hon. Friend the Member for Shipley (Philip Davies) mentioned libel, but often, the points that are reported are facts. The gentleman in Bristol was gay, he was eccentric and he was a teacher, but it is the insinuation that is wrapped around such facts that causes the damage. That gentleman was referred to as a teacher at a school, within a mile of which a murder had taken place several years previously. All that is factual, but the insinuation that the media wrap around such facts causes the damage that needs to be controlled.

[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.

[Anna Soubry]

Did not, unfortunately, the article in The Daily Telegraph omit to mention that under the Bill, the press, the prosecution and the arrested person—notably, in this instance, the press—can apply to a judge for leave to publish a name and address if they believe it is in the public interest? The measure does not constitute a gagging order on the press.

[Mr Buckland]

I absolutely agree with my hon. Friend. It is not about gagging the press. The Bill tries to strike a proper balance between the interests of justice and the wider public’s right to know about what is going on in their community. It is a sensitive balance. None of us can pretend to have all the answers, but it is incumbent on us as legislators to do our best to meet the pressures of modern life and the dangers and abuses that can occur, as happened in Bristol, and try to be the guardians of essential liberties.

[Tom Brake]

The hon. Gentleman used the phrase, “sensitive balance”, and I want to bring him back to ASBOs and publicising the names of young people who are subject to them. I have no time for people who have an ASBO slapped on them, but does not the hon. Gentleman, like me, worry that in Britain, more than any other country in Europe, there is a negative attitude to young people?

[Mr Buckland]

That point is powerfully made. I have said many times, in my constituency and here, that we are in danger of demonising the younger generation. We have all, as Members of Parliament, had some encouraging experiences when we meet groups of young people in our constituencies. I find them to be engaged, alive to the issues that confront them as youngsters, keen to participate in their communities and interested in the world about them. In a way, despite our concerns about some aspects of the syllabus and the direction of education, they are much better prepared for the vicissitudes of life than perhaps people of my generation and previous generations were.

[Nicky Morgan]

To counterbalance that and bring us back to the Bill, there was a case a few years ago of a young man who was accused of rape. During freshers’ week at university, an unfortunate incident occurred with a young lady, and it was unclear whether consent had been given. The charge was not proven, but—to revert to the point about young people—the young man’s life was ruined because he had been named. He was terrified about his future—his employment prospects, the misery of the next few years of university and so on. The Bill may particularly benefit young people against whom charges are not proven.

[Mr Buckland]

My hon. Friend makes a powerful point. As I said earlier, people can be haunted by internet stories about—worse than a charge that is not proven—an innocent person, against whom false allegations, which did not pass the test of the burden of proof, are made. We must hold on to our principles and remember that young people have their lives before them.

I agree with my hon. Friend the Member for Carshalton and Wallington (Tom Brake) about demonising young people, but, sadly, as with adults, there is a majority of good young people and a minority of bad apples. I therefore make no apology for a robust approach to the miscreants in our communities, some of whom are, sadly, young people, who cause genuine misery to some of my residents, and those in constituencies throughout the country. It is perhaps a little too glib to say that we should not publicise the names of young people who are given ASBOs. I mentioned the difficulty with interim ASBOs, but the presumption should be in favour of publication.

[Philip Davies]

My hon. Friend seems to place great faith in people applying to a court for a reporting restriction. Is he not concerned about the courts being clogged up with such cases, given that the Courts Service is already under pressure? What does he envisage happening if a newspaper won its case? Who would meet the costs? If the newspapers are for ever expected to pay the costs of the case, very few will want to go through that expense regularly.

[Mr Buckland]

My hon. Friend makes an interesting point about the practicalities. Let me take the opportunity to tell him something that he may know—I ask him to forgive me if I am teaching granny to suck eggs. There is already a procedure in place in the Crown court for dealing with young people. Section 39 of the Children and Young Persons Act 1933 allows a reporting restriction to be granted on application when dealing with those who are under 18. It is the norm when a young person comes into the Crown court—obviously, for a more serious offence—that the application will have been made in the magistrates court, with a through-order carrying the restriction to the Crown court. Nine times out of 10, no objection is made to that, but there are occasions when local newspapers—reporters or the editors themselves—come to court and are allowed to speak directly to the judge and make representations.

It is very seldom, other than in cases of real public or national significance, that counsel and a panoply of lawyers come down to the court to represent, for example, a local or regional newspaper. It is quite a simple procedure. In my experience, many judges will hear a newspaper’s representations and then make a ruling. It is actually quite a short procedure and not unduly cumbersome, so I am not as concerned as perhaps my hon. Friend is about the possible clogging of our court system. He is right to make the point, however, because I have seen the baleful effects of the Criminal Justice Act 2003, which suddenly filled the courts with loads of applications and led to lots of paperwork and lots more time and—frankly—money being spent by lawyers on procedures that could have been dealt with in a far more streamlined way. So it is an entirely proper point that we should all bear in mind when we consider the mechanisms of this procedure.

The one area where I could envisage some growth is in applications made to a court between arrest and charge. I accept that, but I would urge on those listening and the Government that if we are to make that change we ensure that we do it in a streamlined way that allows for simplicity. I want to emphasise the fact that these things have to be done quickly, and the idea of elongating and complicating proceedings should not form part of a court’s considerations.

Clause 13 of the Education Bill is highly germane to today’s Bill. That is the only reason I want to talk about it—I hope you accept that, Mr Deputy Speaker. It relates to a proposed reporting restriction on the publication of the details of teachers—as I understand the explanatory notes, that includes supply and peripatetic teachers—arrested for “relevant” criminal conduct following a complaint made by a “registered pupil” at the school where the teacher works. I welcome that long overdue proposal. We have seen some horrendous cases. My hon. Friend the Minister has had constituency experience of the problem, and I well remember quite a sensational case in south Wales about 10 years ago that resulted finally in either an acquittal or a variation of sentence on appeal. It was a highly publicised case that caused a lot of angst and anxiety for everybody concerned.

There is a strong public interest in preserving the privacy and reputation of teachers, who sometimes—sadly—are falsely accused of various criminal acts. However, like every exception to every rule, the boundaries and parameters of the restriction become quite difficult on closer examination. Let us consider the school environment. Clause 13 covers teachers, and the Government say that supply and peripatetic teachers are included in that, which is good news, but what about teaching assistants? They have a day-to-day role in the care and conduct of pupils and students. Are they to be treated differently? On the face of the proposal before us, it seems so. What about other members of the school staff, such as caretakers or people working in the canteen, who will come into contact with pupils and could be put into that vulnerable category? They are not included within the parameters of the Bill.

I make those points in the spirit of constructive criticism—but criticism none the less—because, as Members might acknowledge, there is a difficulty when we try to restrict these principles to one area of either the law or the community. That was the problem that we got into when we discussed the rape reporting restriction last summer. People could see the danger in singling out that type of offence, and the question was well put: if it is to apply to rape, why should it not apply to other sexual misconduct and types of conduct—violence, for example—between men and women? Quite rightly, the Government acknowledged that essential flaw as a result of quite a few debates in the House.

I am not saying that clause 13 creates the same level of problems as the rape proposals, but it is a problem none the less. I urge the Government to consider, in its widest context, the impact of the clause as well as the operation of the Contempt of Court Act 1981. I urge them to consider the problem on a more global basis and to come to a reasoned conclusion along the lines of the proposal in Bill presented by my hon. Friend the Member for Broxtowe.

It is astonishing that, having reached the second decade of the 21st century, with a criminal justice system that has, certainly since the late 19th century, developed to quite a high level of sophistication, we still have a lack of clarity when it comes to the reporting of the details of arrested persons before charge. I say “astonishing”, because we have in this country developed—to far too great an extent, some of us would say—regulations to deal with all sorts of other types of perceived mischief. As a Conservative, I would say that a lot of those regulations have proved to be disproportionate and unnecessary. However, here we have an area where we have a fundamental balance to maintain—between the liberty of the individual and his or her reputation, and the wider public interest in knowing about the course of justice and the principle of open justice that has to underpin all criminal court proceedings. It is astonishing that we have allowed this grey area to prevail for so long. That loophole needs to be closed, which is why I commend the Bill to the House.

--- Later in debate ---

[Robert Flello]

The point, however, is that we are looking at proposed legislation born of several high-profile cases, and trying to find a way of addressing how the victim and their family feel and the impact of any publication are important elements in the situation. It is an incredibly complicated situation, however, and that is the point.

Another example is that of Harold Shipman, because it was only when other cases and family members of other deceased individuals came forward with their experiences that the extent of the horrific crimes committed was truly known. As the promoter of the Bill has stated about her efforts, I, too, am not trying to bash the media out of hand or to lay the blame for the situation solely at their door. As I develop my speech, I shall try to deal with how the current situation has come about, but the point is that, without the media, public knowledge of the justice system would be much worse. As well as accepting that there are many unsatisfactory aspects, we should be thankful for their coverage of court proceedings. I am pleased, therefore, that the hon. Lady’s Bill addresses this matter in clause 2, where powers are in place for certain individuals to disapply the restriction on the naming of an individual if it were felt that the reporting would be

“in the interests of justice”

or “in the public interest”. The clause goes on to give some examples of where the former might be applied, such as when it

“may lead to additional complainants coming forward”

or to the provision of

“information that assists the investigation of the offence”.

My discomfort results from the fact that the provision arguably makes the system more complex and puts the decision in the hands of a judge, and therefore relies on the view of the judge being correct. It may not be immediately apparent that the publication of a name would lead to further complainants coming forward. There can be no tried and trusted method of knowing in precisely which cases further crimes are likely to have been committed, but rather only a suspicion on the part of the investigating officers.

There is therefore a discussion to be had about whether it is better that the names of all arrested persons are reported in the knowledge that, in some cases, further information or complainants would come forward, or better that the names of no arrested persons are reported and we have faith that opportunities will not be missed by judges. I think that the hon. Lady would agree—I am sure that she will leap to her feet if she does not—that this is not really about anonymity but about the vitriol and appalling behaviour of some parts of the media.

[Mr Buckland]

That is a very important point. Although the title of the Bill uses the word “Anonymity”, it is really a “Reporting Restrictions” Bill, which as the hon. Gentleman has pointed out, is a different thing. We should emphasise that point, because that was the mistake that we got into in the debate about rape; it should always have been about reporting restrictions.

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[Philip Davies]

No, I do not agree. I do not want the decision about whether to name people who have been arrested to be left in the hands of the police. I like the fact that the media are out there, investigating what the police are doing and holding them to account and in check to ensure that their power is not being abused. The media are an essential control on the state.

[Mr Buckland]

The point that my hon. Friend the Member for Broxtowe (Anna Soubry) makes is that we want to revert to the position that existed some years ago, whereby the press said, “A local man has been arrested,” or, “A local man is helping the police with their inquiries,” rather than going into the further detail that causes the mischief about which we are concerned.

[Philip Davies]

I am not a fan of restricting the information that people can give when it comprises simple fact. The hon. Member for Stoke-on-Trent South made the point particularly well. These things normally work through reports such as “A 25-year-old man from Hastings has been arrested for a crime.” I do not understand how that damages the judicial system. In many respects, the Bill is a solution looking for a problem because, in the vast majority of cases, crimes tend to be reported in the way in which my hon. Friend wants.

[Philip Davies]

My right hon. Friend knows that no one in the House admires him more than I do, although we do not always agree. Indeed, many people have said that he did not become leader of the party because my support for him was disclosed far too early. There is some truth in the assertion that his candidacy went downhill from the very moment that I declared my support for him. The fact that he still talks to me is testimony to his courtesy.

However, if it is damaging to someone who is arrested that their name is mentioned, because they can be vilified through a “no smoke without fire” approach, that applies not only to them, but to those who are charged with an offence, those who go to court and those who are acquitted. I am sure that my right hon. Friend would acknowledge that, in many cases, people go to court and are acquitted, and local people still say, “He must have been up to something; they wouldn’t have arrested him for no reason.” In dealing with the “no smoke without fire” issue and in arguing that people should not be vilified just because they have been arrested, the ultimate logic of the Bill is that we should not name anybody charged with something until they have been convicted. My right hon. Friend might consider that desirable, and it is a perfectly respectable view to hold—although I do not know whether he does hold it—but it is not one I agree with. It would not be a positive, but a negative development.

The thing that I most wish to defend is not just the freedom of the press—although that is important—but the important principle of open justice in this country. A Government research paper last November entitled, “Providing anonymity to those accused of rape: an assessment of evidence”, helpfully included the reasons why an open justice principle is so important to this country. It is important because it

“helps ensure that trials are properly conducted”,

it

“puts pressure on witnesses to tell the truth”,

and it

“can result in new witnesses coming forward”,

which is an important point made by the hon. Member for Stoke-on-Trent South. It also

“provides public scrutiny of the trial process”,

which is also an important factor, and

“maintains public confidence in the administration of justice”.

I am a big believer that the more information the public know the better. Finally and crucially, it

“reduces the likelihood of inaccurate and uninformed comment about proceedings”.

That final point is one of the most crucial. Following a high-profile case, no matter what laws the House decides to pass, we cannot prevent people from speculating on what has happened, on who was involved, on who might be guilty or on who they think it is. I am sure it happens in many households around the country following a crime; I am sure that every household has its resident Inspector Clouseau listing who they think is guilty—“It must be somebody they knew,” “It’s probably a relative,” and all that kind of thing. That is not going to stop, no matter how many laws we pass.

[Mr Buckland]

I am pondering whether my hon. Friend meant Clouseau or Poirot—but it does not matter. He is right to mention open justice, but I think that the document from which he takes those important points was a Judicial Studies Board document on reporting restrictions in the criminal courts and relates only to proceedings in court. However, the Bill deals with the period between arrest and charge. It deals with a stage before that and covers a different issue.

[Philip Davies]

My hon. Friend is absolutely right. However, my point is that these principles are just as important at this stage of the process as they are at the court stage. I personally do not see any great distinction; I do not see why these principles should not apply at this stage too.

It is inevitable that this sort of frenzy will follow a high-profile case. However, it can be more damaging for certain individuals to be the victim of rumour and innuendo in their local community based on no facts whatsoever; and it can be more damaging to have their character unfairly vilified because nobody actually knows what is going on. A simple factual statement by the police in the media stating that a certain individual has been arrested might not be liked by the particular individual, but it might come as a great relief to the lots of other people in the local community suffering from smear and innuendo—“Was it them who was arrested?”, “Have they been arrested?”, “Why haven’t they been arrested?” and so on. In more cases than not, the media help rather than hinder the progression of cases. The fact that the media can put information in the public domain does more good than harm.

As a matter of principle, I do not think that people who have been arrested by the police or other authorities should be anonymous. That is a vital principle of open justice. As I said, it is also in the interest of the arrested person. That principle has been gained over many years. The opposite principle is much more likely to be seen in a totalitarian regime, where people are taken from the streets, arrested and never seen again, without anybody ever knowing what happened to them in the first place. I do not want to see the worst aspects of that kind of regime introduced in this country.

That principle is particularly important at a time of high interest in crime and fear of crime. I cannot speak for my hon. Friends, but whenever I do surveys across my constituency and I ask people what their biggest concerns are, whatever else happens to be in the news, the fear of crime tends to be at the top of the list. Against that backdrop, it would be extraordinary for the public not to have a right to know who might have been arrested for certain crimes in their area. As the hon. Member for Stoke-on-Trent South said, the naming of suspects can also enable further evidence to be gathered to help the administration of justice, by encouraging people to bring it forward.

My hon. Friend the Member for Broxtowe made the perfectly fair point that her Bill would allow people to appeal to a court to provide for an exception to the reporting restrictions. I certainly welcome a step in that direction, and some people may well be satisfied with that safeguard, but I do not see how it will work in practice. The Government have just gone through a process of closing down a number of courts around the country. The capacity of our courts system will be less than it is currently. At a time when we are closing courts down, I do not see why we would want to introduce legislation that would only have the effect of clogging up the courts, as individuals, local communities, the police or the media went to court to ask for exceptions to the reporting restrictions.

My hon. Friend might have mentioned this when I was not here—I apologise profusely for missing the first part of her speech—but I did not hear her say how many extra cases she thought would be heard by the courts, as people applied for exceptions to the reporting restrictions. I do not know whether she or the Government have made any such assessment, but if the Minister has done so, it would be particularly interesting to know what his assessment is, because I fear the courts being clogged up with people asking for reporting restrictions to be lifted. Such applications may or may not be granted. However, if very many applications were granted, that would indicate that the law is an ass and it would need to be changed anyway, and if not very many were granted, I would argue that that would amount to an unfair restriction on the public’s right to know and the media’s freedom of speech.

It would also be interesting to know the possible costs of running such cases. My hon. Friend the Member for South Swindon (Mr Buckland) said that newspapers could go and represent themselves, and that there would not be a great legal bill at the end of such cases. However, I am slightly cynical about these things, because whatever happens, there always tends to be a big legal bill at the end of such cases. However, even if there is no great bill to the newspaper, there will be a cost to the Government of cases being heard in court and the courts system being clogged up. I would be interested to know what that cost would be, who would meet it and whether anyone applying for an exemption to the restrictions would be expected to contribute. If they were expected to contribute, it is quite extraordinary to imagine that people would volunteer to pay such a cost on a regular basis, especially given what we have heard about the dire financial straits of many newspaper groups, and particularly of local newspapers. Therefore, even though there is a safeguard, in practice I do not see how it would be fashioned.

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[Philip Davies]

My hon. Friend is absolutely right. I do not know whether it is envisaged that reporting restrictions would be lifted in most cases. If so, would it not be more sensible to have a legal framework in which there is a presumption that everything could be published and in which people could apply for their details not to be published in exceptional circumstances? That would be a more sensible way forward than doing it the other way round. The proportions in the Bill are the wrong way round. My hon. Friend the Member for Broxtowe might be right to say that some cases involve particular issues, but it is those cases that should be treated as the exception, rather than the vast majority that take place without incident. The Minister will know the figures better than I do, but let us think about the number of people who are arrested in this country every year. How many of those cases give rise to concern? It seems completely disproportionate to make a presumption that reporting restrictions should apply in all cases and that people would need to apply for an exemption. All the evidence suggests that it should be the other way round.

[Mr Buckland]

My hon. Friend is making some very fair points in his practical analysis of the matter. Further to the point raised by my hon. Friend the Member for Christchurch (Mr Chope), may I suggest that the Bill could be amended to allow for the arrested person to give their consent to the release of their details? They could sign a consent form or give their consent through a solicitor at the police station for the publication of their name in the newspapers or on the internet. That would be a practical solution.

[Philip Davies]

I am grateful to my hon. Friend for his suggestion. That would certainly make the Bill better than it is now, but I am not entirely sure that it would totally address my concerns. I shall certainly take his intervention in the spirit in which it was intended, however, because his suggestion would be a helpful step in the right direction.

I want to talk about the effect that a blanket restriction would have on local papers. National papers cover all sorts of gossip and showbiz, but local papers are all about providing information on issues of massive importance in the local area. If a massive event had taken place in an area, attracting a great deal of local interest, the local paper would be at a huge disadvantage, compared with the websites that my hon. Friend the Member for Bury North (Mr Nuttall) mentioned, if it could not publish all the information that the public needed. Such a restriction would certainly not prevent all the rumour and innuendo from being published on the internet, perhaps on websites in other countries and all sorts of different backdrops. It would put local papers at a huge disadvantage if people in the local community could not find information in the paper that was readily available from other sources.

Not being able to name an arrested person would place a huge restriction on anything being reported about a case, because there could be a danger of inadvertently identifying the person by publishing other information. There could therefore be a danger of not reporting crimes that people ought to know about, and that would previously have attracted huge media interest. Such restrictions could have a “chilling” effect on local newspapers. They might not actually fall foul of the provisions in the Bill, but their fear of so doing could have a “chilling” effect that would prevent genuine informative reporting from taking place. That could force local communities to get their information from other sources. It would be incredibly sad if we were inadvertently to put another nail into the coffin of local newspapers, but I fear that that could happen.

I again commend to the House the Select Committee’s report on press standards, privacy and libel, and our other report on the future of local media, which will give hon. Members a feel for the dire straits that many of the regional and local media are now in. We should be very wary of doing anything that could have a negative impact on them.

My hon. Friend the Member for Bury North made an important point about the rules applying only to England and Wales and the effect on media in other countries, especially in the United Kingdom, and I am not sure whether his exchange with my hon. Friend the Member for Broxtowe on the matter was resolved satisfactorily. How would reports in newspapers in Scotland and Scottish editions be tied in? As the laws apply only to England and Wales, The Scotsman might feel emboldened to print the name of somebody who had been arrested for a high-profile crime in England that was newsworthy in Scotland. That would be an extraordinary situation, given that we live in the United Kingdom.

The fact that many Scottish editions of papers are sold in England is an added complication. The Scotsman is also sold in London, as many people here want to buy it. Is the market for which that paper was intended the key factor? Would the law be breached by a newspaper that was intended for a Scottish market but that had somehow found its way into England? Would there be a due diligence defence? The Bill is unclear on that. We might end up with a strange anomaly whereby information that people are not allowed to know in England is available through print or broadcast media in Scotland. There is neither rhyme nor reason to such circulation being legitimate in Scotland, but not in England.

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[Philip Davies]

But it is a question of how effectively that would be enforced. I do not know whether a claim that the paper that had been caught out had been intended for a foreign audience might serve as a “due diligence” defence. It is impossible to know that at this stage.

[Mr Buckland]

I can tell my hon. Friend the Member for Christchurch (Mr Chope) that the Contempt of Court Act does apply in Scotland: it contains provisions dealing with penalties relating to offences in that country. It is important to note that it has that cross-jurisdictional application.

[Philip Davies]

I am grateful to my hon. Friend for that helpful intervention. The Bill, of course, does not have that benefit, as it applies only to England and Wales.

As the vast majority of newspapers throughout the United Kingdom have signed up to the code of practice of the Press Complaints Commission, there is bound to be some uniformity in their behaviour, whether they happen to be in England, Scotland or Wales. There is no way that the press would sign up to the provisions in the Bill as part of their code of conduct, and the Scottish papers would therefore feel no need to observe those provisions. I still feel that there is a potential for anomalies. Indeed, such anomalies already appear frequently in the newspapers.

Barely a week goes by without the appearance of some salacious story about a celebrity—a footballer, a broadcaster or some wealthy individual—who has issued an injunction with the aim of preventing the publication of information that has been passed to the newspapers. More often than not, after a few days the identity of the person concerned comes to public recognition through the internet. The story is published in a foreign country, and then turns up in chat rooms and rumour mills.

I do not know a great deal about websites of that kind, being a fully paid-up member of the Luddites, but what I do know is that, by one means or another, the names of such individuals tend to come to the surface at some point. It has always struck me as extraordinary that when everyone in the pub—virtually everyone everywhere—knows the identity of some individual who is involved in one thing or another, the only place where no one can discover it is the newspaper, because of some bizarre injunction.