by Hugh Tomlinson QCThe Mail on Sunday and the Daily Telegraph are alarmed about ‘secret arrests’ – which, as usual, they blame on Lord Justice Leveson. The complaint concerns proposed new guidelines from the Association of Chief Police Officers under which “forces will be banned from confirming the names of suspects”. The Mail calls it “a chilling new threat to the right to know” and holds out the prospect of people being swept off the streets in the manner of North Korea and Zimbabwe. The Telegraph says that critics are condemning the proposal as an attack on open justice.

Both papers link the proposal directly to Lord Justice Leveson. The Mail says: ‘Chief constables have been driven down this secretive route by a recommendation of the Leveson Inquiry, supposedly designed to protect the innocent from publicity.’ And the Telegraph says: ‘The plans follow recommendations made by Lord Justice Leveson in his report into press standards.’Well not quite. This not a “recommendation” by Lord Justice Leveson – it not mentioned in the list of 92 recommendations which he makes. But this is, however, a topic which is dealt with briefly in the body of the report. The context is a discussion of “media ride alongs” (that is, taking the media on police operations). Lord Justice Leveson quotes Andy Trotter, Chief Constable of British Transport Police and Chair of the ACPO Communications Advisory Group as saying that individuals who have been arrested should not be identified by any police force, nor the media (Leveson Report, Vol 2, Part G, para 2.36). He notes that a similar view was expressed by the Commissioner of the Metropolitan Police, Sir Bernard Hogan-Howe. Both mentioned the case of Christopher Jeffries. So, Chief Constables were not “driven down this route” at all – it was their own idea.However, this police view was one with which Lord Justice Leveson agreed. He said"I think that the current guidance in this area needs to be strengthened. For example, I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, 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"Leveson Report, Vol 2, Part G, chapter 4, par 2.39, p.791So, the suggestion is not that arrests should be “secret” but that, in the ordinary, course, the names of suspects should not be made public. This appears to be the position presently being considered by ACPO.It is important to understand the present practice. The police do not usually identify someone who they have arrested. Rather they give general details of an arrest “which are designed to be informative but not to identify – for example ‘a 27 year old Brighton man’” (ACPO Communication Advisory Group 2010 Guidance, para 4.3). If, however, the media discover the name and seek confirmation some forces give this, others do not but may indicate if the name is incorrect (para 4.4). If the person is charged the criminal process begins and the name and age of the person charged is then released.The present position is obviously unsatisfactory. At best it encourages a “media guessing game”. At worst, it encourages police corruption. In high profile cases it is clear encouragement to police officers to make wrongful or corrupt disclosures of the identities of arrested suspects to the media. A number of such cases are presently being investigated by Operation Elveden.What then is the purpose of the proposed change? It is “a threat to democracy” and an example of “secret justice”? Neither charge has any sensible basis.It important to remember some basic facts about arrests. The police are entitled to arrest someone if there are “reasonable grounds to suspect” an offence has been committed. Suspicion is a low threshold, as was said in the leading case suspicion “is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.”(Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, at 948). “Reasonable grounds” is a low hurdle. For example, it is common for several different people to be arrested where only one of them could have committed an offence – the others are innocent. Many suspects who are arrested are entirely innocent of any wrongdoing and are later released without charge. They have been, in the well known phrase, “eliminated from inquiries”. In such a case, the formal legal process is never commenced.However, a report of the fact that a person has been arrested is, potentially, extremely damaging to them. Many members of the public will assume that “there is no smoke without fire” and that, if a person is arrested then they must have done something wrong. The arrest may receive wide publicity, the release without charge none at all. The fact of an arrest is “sensitive personal data” and may often disclose private information about a person. If, for example, a person is arrested for a suspected sexual offence, the fact of the arrest will reveal private information about their sexual activity.So the question as to whether an arrested suspect should be identified is one of balance. On the one hand, there are the rights of the individual in the protection of their reputation and private life. On the other, there is a public interest in openness and transparency.How is that balance best to be struck? There is a strong argument that the position apparently being proposed by ACPO is the right one. On this proposal the public is told that there has been an arrest and, if it turns out that there is sufficient evidence to charge the suspect, then the person is named. The rights of the individual are protected – if there is insufficient evidence to charge them, their reputation is not damaged and their private life is not interfered with by publicity. All this is subject to a “special circumstances” exception – where the public interest requires immediate disclosure. A name can be disclosed where this is necessary, for example, to prevent crime by assisting in the arrest of associates or encouraging witnesses to come forward.The complaint that this is somehow similar to Zimbabwe or North Korea is absurd. The arrests are not secret as far as the person arrested is concerned. The guidelines do not prevent the suspect from publicizing his or her own arrest. If that person wants to complain about police wrongdoing then there is nothing to prevent them. The guidelines only concern pre-charge disclosure by the police. The process of justice – beginning with charge – will remain open. What will be inhibited is needless damage to the rights of innocent suspects. This is a fair balance and one which deals with the obviously unsatisfactory position under the present system.Hugh Tomlinson QC is an editor of Inforrm and the Chair of Hacked Off.This article was originally posted on Inforrm.