Inference of guilt for identified crime suspects
If the police or another agency is investigating a person or the person is under arrest, this makes them a crime suspect. Media organisations, though, must be careful not to publish the identity (name or another detail identifying him/her) of a suspect at this stage, if they have been able to discover such information. This is because if the police investigation does not lead to a criminal prosecution then the suspect would be able to sue the organisation for libel.
This remains the case for reports or broadcasts which make it very clear that no prosecution has yet taken place (and thus the suspect could still be completely innocent). This is because such an, albeit factually correct report, creates an inference that the person might be guilty and so is defamatory to that suspect. Such an inference may turn out to be unfounded and the media organisation may be unable to defend it in a subsequent libel case.
However, there may be an official release of the identity of a person under investigation or under arrest by a spokesperson for the police, the CPS or other governmental agencies like local councils. In this instance, it is perfectly safe for a media organisation to publish this information as if it comes to a libel case, they can rely on the defence of qualified privilege (if all the requirements for this are met).
ACPO guidelines on police naming of suspects
The Association of Chief Police Officers (ACPO) issued a set of guidelines to the police on this subject. The guidelines stated that the police should not generally provide the names of people under investigation to the media. If they do not actually identify the suspect, the police are allowed to give some details such as age, occupation or where the suspect is from.
The ACPO guidelines also state that once an individual has been charged then the police can and will identify them to the media, usually providing name, age and occupation. There are certain exceptions; for instance this applies to adults (see other articles for juveniles). The official release of this information will include details of the charge and subsequent court appearances.
In what it terms ‘exceptional circumstances’, the ACPO guidelines accept that police may release the name of a suspect prior to a charge, if it is in the public interest to do so. Moreover, when a media organisation has already discovered the suspect’s name through investigative journalism and seek confirmation of it, the police are permitted to confirm the name.
Queen’s Bench 1991 ruling
Despite the ACPO guidelines appearing to make it quite straightforward to media organisations what they can and cannot publish, the Queen’s Bench Divisional Court ruling regarding Westminster Press Ltd in 1991 is worth noting here. It was ruled that the media has no automatic right to be informed by the police the name of a person who is under investigation or who has been charged by a criminal offence.
Motives of media organisations for identifying crime suspects
The above summarizes the legal risks for media organisations publishing the identities of crime suspects in theory. Of course in reality many choose to do so, with full knowledge of the libel risk. This is often the case when a celebrity or another public figure is the crime suspect in question and amidst fierce competition to break big news stories. Thus media organisations may publish the suspect’s name before a charge, summons or requisition.
There are a number of reasons that they would feel relatively safe from libel action. Firstly, they may have information from police leaks or elsewhere that indicates a charge is almost certain 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.
Recent libel settlements and the dangers of inference of guilt for media organisations
So media organisations might choose to run the risk of a libel action in order to sell more papers or bring in more viewers/listeners. Understandably then, there are a few major examples of when the danger in publishing the identification of crime suspects or unfounded allegations has led to big payouts from media organisations.
- In 2009 a man accepted £50,000 in damages from the BBC who had wrongly reported that he had been charged with fraud, when in fact he was never charged.
- In 2008, Express Newspapers paid £550,000 in a libel settlement to the Find Madeleine campaign after they published suggestions and false allegations in various articles that Kate and Gerry McCann had caused the death of their three-year-old daughter Madeleine who disappeared during a family holiday in Portugal the previous year.