An awful lot has been written about secret arrests and secret justice over the last few weeks. Should the police name people who have been arrested, even though they have not been charged with any criminal offence and may never be? By not naming them, are police, under cover of the Leveson Inquiry, placing free speech and democracy at risk?
I pose these questions because the situation right now must be pretty confusing to anyone unsighted on what this debate is really about. It is worth reminding ourselves of some of the facts.
The Leveson Report challenged police practice on four counts: ‘off the record’ briefings, recording contact with the media, appropriately reporting any personal relationship between a police officer and a journalist, and (although not a specific recommendation) providing information concerning arrests to the media. Not surprisingly, the police service is reviewing recommended practice to take account of these conclusions. The aim is a framework which supports public confidence in professional, transparent and open relationships between police and the media. If we get it right, that framework should support, not restrict, the free flow of appropriate information about policing which is vital to our accountability. Anyone who doubts our sincerity about this point would do well to read the evidence of numerous police chiefs who lined up to emphasise the value of professional and open police media relationships to Lord Leveson.
But it is the naming of those arrested which has provoked so much comment, not all of it well informed. The current situation is that most forces will already neither confirm nor deny the name of a person whom journalists put to them has been arrested. However, some forces will confirm details if journalists have gathered them from other sources. That general lack of consistency is a source of confusion to police, press and public alike.
A common occurrence has been for a journalist to be given the name of a person from a source.That source could be a witness, friend, family member or even a corrupt public official. The journalist then telephones the force press office and says the name of the person concerned will be published tomorrow.
What sometimes follows is a bizarre parlour game where the journalist sometimes says things like: ‘will you be angry if I publish this name?’ or ‘am I completely wrong on this?’. Depending on the relationship between journalist and press officer, he or she may receive some guidance, or alternatively, may become quite frustrated when none is provided.
So the current situation is less than satisfactory, with no one certain as to what can be expected, and a pervasive sense that these arrangements may not be transparent or fair. This is damaging to public confidence in both police and media.
What we are proposing is that forces in England, Wales and Northern Ireland adopt a common practice of neither confirming nor denying a name which is put to them. There will be exceptions when it will be in the public interest to publish a name, whether to prevent or detect crime or for some other serious concern. The police will always put public safety interests first. It could include when someone has been arrested for kidnap and we are searching for the victim. It could also be in the public interest to publish the name of someone who could be responsible for many other crimes, in order to encourage other victims to come forward. In such cases the decision to publish the name would be subject to the agreement of a review officer.
As is current practice, the details of people charged would be confirmed and the approach of not naming would only apply to the period between arrest and charge.
These proposals have nothing to do with what the media can publish. That is a matter for editors. I am only concerned with what the police do and we must be above reproach. The leaking of details of people to the media, either for payment or not, by corrupt officers has led the police to disrepute. The public, the media, and those arrested should all expect police to behave with the highest standards.
It is, of course, within the gift of the person arrested and their legal representatives to inform whoever they choose about their arrest. Those are clear rights within our legal system which the police uphold. It is also within the gift of the media to publish names of those arrested if they are confident of their facts. That is a matter for them.
The Law Commission takes a different view and recommends that we confirm names that are put to us. When I spoke to a symposium organised by the Law Commission on this matter, I was surprised to find myself almost a lone voice concerned about the many people that we arrest who are not subsequently charged. Their names could forever be linked to heinous offences of which they are entirely innocent. It is unlikely that any newspaper will give the same prominence to news of no further action to be taken as they would to news of an arrest.
Senior judges and the Information Commissioner have since added their voices to the debate, as have many within the media. Charting a course through the radically different viewpoints is no easy task for the police. But in the absence of any statutory guidance to determine a way forward, it is up to the police, through the new College of Policing and ultimately all Chief Constables, to deal with it.
This is not secret justice or secret arrests, but an effort to set clear standards which meet a test of fairness where everyone knows what to expect.
Andy Trotter is Chief Constable of British Transport Police and leads on media issues for the Association of Chief Police Officers.
This article appeared originally in the Press Gazette on April 29, 2013.
*(May 2013) The College of Policing have now published Guidance on Relationships with the Media, which is available here.