Inference of guilt for identified crime suspects
If the police or another agency is investigating someone or has placed them under arrest, this makes them a crime suspect. Media organisations must be careful of publishing the identity of a suspect at this stage – via print, online, TV or radio – because if the police investigation does not lead to a prosecution, the suspect may be able to sue the organisation for libel.
Until a prosecution has taken place, the suspect could still be completely innocent. Publishing the identity of a suspect – even though this may be a factually correct report – creates an inference that the suspect might be guilty and thus is defamatory. If this inference turns out to be unfounded, the media organisation may have a hard job defending it in any subsequent libel case.
If, however, there is an official release of the identity of a person arrested or under investigation by a police spokesperson, the CPS or another governmental agency, the media organisation would be free to publish this information, safe in the knowledge that in a libel case, they could rely on the defence of qualified privilege, provided all the requirements for this are met. These are that:
- the person who makes a communication has an interest or duty (whether legal, social or moral) to make it to the person to whom it is made; and
- the person to whom it is made has an interest or duty to receive it; and
- the person who makes the communication is not motivated by malice.
Guidance on police naming suspects
In his 2012 ‘Report on the Culture Practices and Ethics of the Press’, Leveson LJ stated that ‘save in exceptional and clearly identified circumstances (eg, 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’.
This view was echoed in the College of Policing’s 2013 ‘Guidance on Relationships with the Media’ which stated that ‘save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of a crime should not be released by police forces to the press or the public’.
Such circumstances include a threat to life, the prevention or detection of crime or a matter of public interest and confidence. A decision to release the name of an arrested person should be made at a chief officer level and a record made of the reason for releasing the information. Forces may, however, provide non-identifiable information such as the age, gender, offence and a general location of arrest.
When someone is charged, the College of Policing guidance says, information released to the media can include the name, address, occupation and charge details for an adult and should be released where no legal restrictions apply. Crown Prosecution Service advice stipulates that if an individual is not named at point of charge, that decision should be taken in conjunction with them.
Contempt of court
As well as the risk of libel proceedings, media organisation must be wary of publishing anything when proceedings are ‘active’ which creates a substantial risk that the course of justice in these proceedings will be seriously prejudiced or impeded. This would be contempt of court under the Contempt of Court Act 1981 and carries a sentence of up to two years and/ or an unlimited fine. Proceedings become ‘active’ in most criminal proceedings when:
- the suspect is arrested of a suspect;
- an arrest warrant or summons is issued;
- someone is charged.
Motives of media organisations for identifying crime suspects
Despite the inherent risks involved in publishing the identities of crime suspects, many media organisations still choose to do so. This is often the case when a celebrity or another public figure is the crime suspect and amid fierce competition to break big news stories (for example, the widespread publication of Sir Cliff Richard being investigated over historical sexual abuse claims made against him; after a lengthy investigation, the Crown Prosecution Service announced no charges would be brought).
There are a number of reasons that the media would feel relatively safe from libel action. Firstly, they may have information from police leaks or elsewhere that indicates a charge is likely to follow the investigation. Secondly, a celebrity or politician may be unlikely to sue to avoid further bad publicity and alienating the press.
This is particularly the case when the person is charged. A libel action over pre-prosecution identification and the defamation to the individual’s name is not as strong once the media gain ‘privilege’ protection to publish any subsequent court proceedings. The damage to the individual’s reputation would become indistinguishable from the damage from these later, legally sound reports.
Media organisations might choose to run the risk of a libel action to sell more papers or bring in more viewers/listeners, but there have been occasions where publishing the identification of crime suspects or unfounded allegations has led to big payouts from media organisations.
- In 2011, eight national newspapers – The Sun, Daily Mirror, Sunday Mirror, Daily Record, Daily Mail, Daily Star, The Scotsman and Daily Express – made public apologies to Christopher Jefferies, the landlord of murder victim Joanna Yeates, and agreed to pay him substantial damages for the libellous allegations made against him.
- In 2009, Mohammed Amar accepted £50,000 in damages from the BBC who had wrongly reported that he had been charged with car finance fraud, when in fact he was never charged.
- In 2008, Express Newspapers paid £550,000 in a libel settlement to Kate and Gerry McCann over false allegations that the couple had caused the death of their three-year-old daughter Madeleine, who disappeared during a family holiday in Portugal the previous year.