Anonymity (Arrested Persons) Bill [HL] — House of Lords, 2019-03-01
Topic: Law and Crime
Brian Paddick (Liberal Democrats, Centre to centre-left): My Lords, the way that this legislation deals with that issue is that a Crown Court judge would have to make that decision. It is no longer left to the discretion of the police or indeed the media that those details should be placed into the public domain. As the noble Lord has said, examples are where it may lead to additional complainants coming forward, where it could lead to information that assists the investigation, or where it could lead to information that assists the arrested person Clause 2(3) sets out who would be able to apply for such a direction from the judge or ask for it to be reviewed. That includes the court itself, the person who has been arrested, a chief constable, a prosecuting authority or any other person who is considered by the judge to have sufficient interest. Clause 2(4) would mean that if a joint application was made by the arrested person and the chief constable or prosecuting authority, the court would have to make the direction Clause 3 would it make it a summary offence to contravene the reporting restrictions set out in Clause 1. It also sets out the different methods of reporting and who would be responsible for any offences. For example, in the case of a newspaper the proprietor, editor and publisher would be responsible. For a broadcaster, any body corporate engaged in providing the service in which the programme was included, and any person with functions corresponding to those of an editor of a newspaper, would be liable. In addition, Clause 3(2) states that the Director of Public Prosecutions or the director of the Serious Fraud Office would need to give consent for proceedings under Clause 3 to begin Clause 4 sets out a defence that would be available to those who breach Clause 1, stating that if those charged under Clause 3 were not aware, and neither suspected nor had reason to suspect that the publication or programme in question was of or included the prohibited matter in question, they would not be able to be prosecuted under the Bill Clause 5 outlines that the penalties available would be a prison term not exceeding six months, a fine not exceeding the statutory maximum, or both. If an offence is committed by a body corporate, Clause 6 would apply. The clause sets out that if the offence is proved to have been committed with the consent or connivance of a senior officer of the body corporate, or a person purporting to act in such a capacity, then both that individual and the body corporate would be guilty of the offence and liable to be proceeded against. Clauses 7, 8 and 9 relate to interpretation, the making of orders and miscellaneous matters such as territorial extent, with the Bill applying to England and Wales only It is claimed that not publicising the names of arrested people would go against the principles of open justice. The Bill deals with that argument by allowing the accused, his lawyer, the police or anyone else with an interest in the case to make application to a Crown Court judge to lift anonymity. The John Worboys case is often cited as an example of where police released information that resulted in 85 further victims coming forward. In cases such as Worboys, where it appears likely that there may be further victims, a court could give permission for the details to be released Another aspect of open justice is to counter arbitrary actions by the state. Once someone has been arrested, save in exceptional circumstances, they have the right to have a friend or relative informed and be represented by a lawyer. The increased chances of people being effectively kidnapped by the state and disappearing as a result of the Bill still remain diminishingly small It should also be noted that anonymity is protected only until the point of charge. Once the Crown Prosecution Service or the police have decided to charge someone, or to issue a summons for them to appear before a court, the right to anonymity ceases in the interests of open justice. The court process, the heart of an open justice system, would remain open There are already exemptions to open justice—for example, where the details of the victim of an allegation of a sexual offence cannot be published or broadcast. There have been cases where alleged victims have engaged in consensual sexual activity but have subsequently claimed that they did not consent, and it is only when their identity became known that this pattern of behaviour has come to light. It is acknowledged even here that there are risks, but they are necessary and proportionate In the overwhelming majority of cases, sexual offence victim anonymity is necessary and effective, not because College of Policing guidelines prohibit the naming of sexual offence victims but because it is a criminal offence to identify the victim. Similar arguments apply to pre-charge anonymity: there may, in a limited number of cases, be a risk, but overall the effect of pre-charge anonymity is only positive Some would like anonymity to go further, until the person is convicted, particularly in sexual offence cases because of the stigma attached to such allegations, but we have resisted such calls in the interests of open and transparent justice. The difference between publication of the details of the accused at arrest and at charge is significant. In order to justify an arrest, the police have to have only reasonable cause to suspect that an offence is being, may have been or may be about to be committed—a very low bar. Before someone is charged with an offence, however, the Crown Prosecution Service must be convinced that there is more than a 50% chance of conviction and that it is in the public interest to prosecute the individual. While individuals remain innocent in the eyes of the law until convicted, pre-charge anonymity provides a balance between the rights of the individual and the right to free speech and open justice The devastating impact of being wrongly accused and having this information published and broadcast usually involves high-profile individuals, such as Lord Brittan, Paul Gambaccini and Sir Cliff Richard. In the latter case, Cliff Richard pursued a privacy action against the BBC and South Yorkshire Police, but this required over £1 million in up-front costs that would have been forfeited if the case had been lost, a course rarely open to those of limited means This type of "trial by media" can also apply to previously unknown individuals, such as Christopher Jefferies, who was falsely accused of murdering Joanna Yeates in 2010. I have also been told of a local garage owner whose business was ruined over false allegations that he was turning back the odometers of the cars he was selling, and of the suicide of a local teacher who was wrongly accused of a sexual offence. This Bill is not about protecting the famous but protecting all those falsely accused Despite the efforts of the police and the Government to prevent this, despite all the furore over Operation Yewtree and Operation Midland, and the Leveson inquiry, it is still happening. In December, a couple arrested over the drone chaos at Gatwick Airport had their identities published in the press and broadcast by the media. They said they felt completely violated. The couple were arrested but later released without charge. They said their privacy and identity had been completely exposed after being named in the media and having had their home searched. They said: "We are deeply distressed, as are our family and friends, and we are currently receiving medical care. The way we were initially perceived was disgusting" The current situation can be summed up by the words of Sir Richard Henriques, a former Justice of the High Court in England and Wales, in An Independent Review of the Metropolitan Police Service’s Handling of Non-recent Sexual Offence Investigations Alleged against Persons of Public Prominence. I quote: "I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer. Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters. Those consequences were avoidable by protecting anonymity. Nobody is safe from false accusation and damaging exposure under present arrangements. A reputation built on a lifetime of public service or popular entertainment can be extinguished in an instant. I sincerely believe that statutory protection of anonymity pre-charge is essential in a fair system" He does not say that statutory protection pre-charge is unnecessary, but that the Government are unlikely to protect the anonymity of suspects pre-charge because it would enrage the popular press. Now is the chance for the Government to prove Sir Richard Henriques wrong. I beg to move.