Freedom of Expression v Privacy

Should defendants be identified in the press before they're found guilty?


By James Hudson


Many of us, over this Christmas period, would have seen not only countless adverts for gadgets, food, and alcohol, but also the complete and utter shutdown of the United Kingdom’s second largest airport due to a suspected toy drone allegedly spotted flying round Gatwick. Unluckily, for two individuals their faces got plastered up and down the country and faced opprobrium from the press and general public for something the police did not even charge them with. This raises an interesting point for reform, we will come back to this case later.


The Current Law:


Currently, under the Contempt of Court Act 1981, during active proceedings, the court can seriously fine or imprison (up to one year) the author of a publication that would cause a serious risk of prejudice to the trial. Active proceedings are defined as being as soon as someone is arrested, or a warrant is produced, or someone is charged.


This is not to say that all reporting is banned, but it has to be conducted in a fair and accurate way (s.4 Contempt of Court Act 1981) and/or it has to be part of a publication that is part of a discussion of good faith of public affairs. Except, of course, if a judge issues a s.4(2) order of the Contempt of Court Act 1981 which puts a blanket ban on reporting as it has been deemed by the judge that even fair and accurate reporting could prejudice a trial.


Complainants are afforded much more anonymity in the press than defendants are. For Complainants: if they are alleging a sexual offence (s.1 Sexual Offences Act 1992), anyone involved in slavery or general exploitation (Modern Slavery Act 2015), are alleging female genital mutilation (s.21 Serious Crime Act 2015), or are a child (s.45 Youth Justice Criminal Evidence Act 1999) then you are afforded anonymity for at least the length of the trial, if not for life. In contrast, for defendants: unless you are a child at the time of the trial (s.45 Youth Justice & Criminal Evidence Act 1999) or you are a teacher accused of an offence against a pupil (s.13 Education Act 2011) then you do not have the luxury of anonymity.


The need for legal reform:


There are arguments that the disparity between the victim and the defendant is justified. However, it is important to remember that they are not yet victims in the eyes of the Law and this is extremely important. This is paramount to remember not only in the context of upholding the very foundation of the legal system we as Law students should aim for uphold (this being the presumption of innocence), but also remembering that more often than not the press would write about a current affair in the aim of selling their publication under the guise of freedom of expression often at the expense of the defendant in the case. Many of us have an innate human feeling not to empathise with those who have committed crimes, which is extended to those suspected of crimes, and some may argue that the difference in protections afforded to complainants in comparison to defendants is just because the complainants are fragile and brave for coming forward and if they are not protected from the furore of the press then this will deter future complainants from coming forward, which would ultimately cause miscarriages of justice taking place.


Whilst you would be right that the anonymity afforded to complainants is just and it is right, both morally and pragmatically, for the administration of justice, it does in no way combat the argument for the extension of the anonymity to defendants. Anna Soubry MP is championing a reform to the Law calling for anonymity for defendants before they are charged with a crime; this has become known as “Cliff’s Law” after it was found the BBC had invaded Mr Richard’s privacy and caused a diminution of his reputation (Sir Cliff Richard v BBC and South Yorkshire Police [2017] EWHC 1291 (Ch)) as a result of their coverage after the BBC broadcast footage of the police raiding his home despite the police not making an arrest or charging him.


With reference to the drone arrest couple, they are another shining example of why this law should be backed and enacted. Paul Gait and Elaine Kirk were the arrested couple who had their faces plastered on four major newspapers. Not only this but on twitter Piers Morgan commented branding the couple “terrorist clowns”; this would not be a cause for concern if Piers Morgan did not have 6.5 million followers. To put this in perspective, with Piers Morgan’s comment this had the potential to reach one in ten people in the United Kingdom. To his credit he did take these comments back and issue a public apology (via twitter) but psychologically this is already enough to be embedded within the general populations’ mind and would make it incredibly hard to displace this stigma.


In fact, in more serious offences where the stigma is even stronger, there are calls for the anonymity of defendants to go even further; this is most pertinent in the cases of rape. In the case of Liam Allan (2018), this was a man who was falsely accused and almost convicted of one of the worst criminal offences. It was a failure of evidential disclosure that almost led to his trial by jury becoming complete. In the respect that he had his charges acquitted, he was lucky. But the fact he had his reputation tarnished and had to re-kindle relationships he needn’t have if he had been anonymous would make him unlucky. For others in the same position as Mr Allan such as in the case of Jay Cheshire (2016); the sheer weight of the stigma was enough to lead him to suicide at age 17, despite the charges against him being dropped. A reform to the Law to allow for the anonymity of defendants in sexual offences was considered in 2003, but was ultimately defeated.


It can be argued in counter to this that the press would report the identity of the defendant in such cases as a matter of public interest to bring the issue to people’s attention in the hopes others would come forward. This does however, leave fears of victim trawling leading to inaccurate evidence coming forward resulting in the wrongful conviction of the innocent. Yet, in genuine cases this may be of great use to the court in corroborating evidence if the defendant had any patterns in his behaviours during a sexual assault for example. The most obvious answer to this would be to leave the anonymity in the hands of the judge at their judicial discretion to determine whether the revealing of their identity to the press would be a significant benefit in each individual case.


Conclusion:


In theory, the label of being a “rapist” should have immediately dispersed from the once accused with those who were once noted in the media as “alleged rapists” or “terrorist clowns” no longer bearing the social alienation that such an accusation causes. However, this comes with the flawed assumption that the general public has full comprehension of what these terms mean and a general understanding of the working of the legal system and courts. This is something which has been demonstrated time and time again to be a fallacy within the Law. Therefore, whilst in a democratic society a free press and freedom of expression are paramount, it is a dangerous thing which needs to be utilised responsibly. To have a responsible press is to allow the administration of justice to be carried out unimpeded and with impartiality to both parties. For this to be accomplished there needs to be a serious reform of the law to protect the anonymity of all defendants before they are charged with a crime and (with judicial discretion) for crimes with particularly strong stigmas for the anonymity to remain until the defendant is found guilty by the jury.

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