Senior judges have expressed support for a new system of secret arrests. The proposed ban on naming suspects is supported by chief constables but opposed by the government’s law reform advisers.
Anonymity for Suspects?
Allowing all defendants anonymity between arrest and charge, subject only to extremely rare exceptions, would amount to a major change in the current criminal justice system of England and Wales.
Support for secret arrests comes in a paper written by Lord Justice Treacy and Mr Justice Tugendhat. The paper is dated 4th March 2013, however, it has just this week been released in line with judicial practice. The paper reflects the views of the president of the Queen’s Bench Division Sir John Thomas, the senior presiding judge Lord Justice Gross, the chairman of the sentencing council Lord Justice Leveson and “other senior judges”.
It was issued in response to a consultation paper on contempt of court published by the Law Commission last November. This noted the difficulty that media organisations had in finding out from the police whether or not an individual had been arrested. Once an arrest is made, a case is “active” under the current contempt of court laws and there are limits on what can be published about the suspect.
The Law Commission proposed:
“…that the Home Office request that the Association of Chief Police Officers issue guidance, for dissemination to police forces, which would encourage the police to adopt consistent decision-making about whether to release information about arrestees following a request from the media to identify the arrestee.
“We consider that such policy should establish that, generally, the names of arrestees will be released but that appropriate safeguards will need to be put in place to ensure that some names are withheld, for example, where it would lead to the unlawful identification of a complainant, where the arrestee is a youth or where an ongoing investigation may be hampered.”
However senior Judges are of an opposing viewpoint:
“We adopt the words of Lord Justice Leveson in his report [Part G, chapter 3 para 2.39]:
“the current guidance in this area needs to be strengthened. For example, I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.”
Libel Damages
In support of their view that suspects should not be named, the senior judges cite the example of Christopher Jefferies, the Bristol landlord who was arrested on suspicion of murdering his tenant Joanna Yeates, and then released. Police then established that Yeates had been killed by a neighbour and Jeffries recovered libel damages from newspapers.
The judges say:
“The police arrest many people who are never charged. If there were a policy that the police should consistently publish the fact that a person has been arrested, in many cases that information would attract substantial publicity, causing irremediable damage to the person’s reputation. Even if the fact that the person was not charged were subsequently published, that would not receive the same publicity, and would not prevent subsequent internet searches disclosing that the person had been arrested.”
Support for a general ban on identifying arrested people came from Andy Trotter, chief constable of British Transport Police and the lead officer on media policy for the Association of Chief Police Officers. He said “We are suggesting that people who have been arrested should not be named and only the briefest of details should be given.”
It remains to be seen what the outcome will be.
