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Section numbers from the book are used when relevant. The book should be read too. Its content provides fuller explanations and context.
5.11.2 Risk in privacy law of reporting a suspect’s identity
It is now established case law that a suspect normally has ‘a reasonable expectation of privacy’ as regards being under investigation by the police or another law-enforcement agency.
Case study: In 2018, a High Court judge awarded the entertainer Sir Cliff Richard £210,000 in initial damages after he successfully sued the BBC for misuse of private information and breach of data protection law. He sued because it reported in 2014 - acting on information officially supplied to it by South Yorkshire police - that officers from that force were searching his penthouse flat in Berkshire. The BBC’s reporting revealed that the search was taking place because police had received an allegation that he had committed a sexual assault at an event in Sheffield in the 1980s. Sir Cliff, who said the allegation was false, was not arrested. In 2016, police announced no charges would be brought against him. He was in Portugal when his flat was searched. Before the trial in the privacy action, the South Yorkshire force admitted liability and agreed to pay Sir Cliff damages of £400,000, and to contribute towards legal costs he had incurred to that point. The trial was to decide whether the BBC was liable to pay a share of the damages and of that costs sum, and further damages. The judge ruled that the BBC was liable. The sequence of relevant events was that in June 2014 BBC reporter Daniel Johnson, who covered the North of England, learned from a confidential source that the South Yorkshire police force had received such an allegation about Sir Cliff, and was investigating it. A month later, Mr Johnson told the force’s head of corporate communications, Carrie Goodwin, that he was aware that it was investigating Sir Cliff. At a subsequent meeting, the police asked the reporter not to publish anything at that stage about the investigation because they intended to search Sir Cliff’s home, and because any publicity prior to the search might compromise its effectiveness. It was agreed between the police and the BBC that it would not report on the investigation until the search was underway, but that the police would tell the BBC when the search would take place, so the BBC could report on that immediately, as it was happening. The evidence of South Yorkshire police in the privacy trial was that it felt pressurised by Mr Johnson into making that offer in order to prevent him publishing a story prior to the search. The BBC’s case was that the information concerning the search was provided voluntarily by the police, and that the BBC was essentially the police’s ‘messenger’ to get information about the investigation into the public domain. The police gave the BBC a day’s notice of the search, enabling it to arrange the attendance of journalists. Also, because of the seclusion of Sir Cliff’s flat and the lack of visibility from the road, the BBC arranged for a helicopter so that footage could be gained during the search of the inside of the ‘gated’ complex which included the flat. In ruling against the BBC, Mr Justice Mann said that when Mr Johnson approached South Yorkshire police, he already had information from a source not within that force that it was investigating such an allegation against Sir Cliff, and that Mr Johnson had received that information knowing that it must have been communicated by the source in breach of confidence, and so there was already a breach of Sir Cliff’s privacy rights by that source. When the South Yorkshire force confirmed to Mr Johnson that there was such an investigation, that too infringed Sir Cliff’s privacy rights, and this was a serious breach, the judge said. He added that there was a further serious breach when the force gave Mr Johnson advance notice of the search. But, the judge said, the force had felt manoeuvred by Mr Johnson into a disclosure. ‘Mr Johnson knew, or ought to have known, that what he was getting was exceptional and was provided in breach of confidence.’ The judge said that the BBC was ‘the more potent causer’ of damage Sir Cliff had suffered, and that its breach of his privacy was ‘more significant’ than such breach by South Yorkshire police. Mr Justice Mann ruled that the force should be financially liable for 35% of the damages and the BBC for 65%. The judge heard evidence from Sir Cliff that the BBC’s revelation to the public that he was under an investigation for an alleged sexual assault had disrupted and ‘put on hold’ his career plans, and left him feeling trapped in his own home, and despair and hopelessness leading, at times, to physical collapse. ‘At first he did not see how he could face his friends and family, or even his future’, the judge said, adding that Sir Cliff felt the whole world would be talking about whether he had committed the alleged crime or not. ‘Sleeping was difficult; he resorted to sleeping pills.’ The judge said that £20,000 of the £210,000 which he ordered the BBC to pay Sir Cliff was ‘aggravated damages’ because it had submitted coverage of the search for a Royal Television Society ‘Scoop of the Year’ award (which it did not win), despite being asked by Sir Cliff’s solicitors not to do that. The judge said the award submission had caused Sir Cliff additional distress both by demonstrating the BBC’s pride and unrepentance and to a degree repeating the invasion of privacy ‘with a metaphorical fanfare’. In a settlement of outstanding matters after the trial, the BBC also paid Sir Cliff around £2million towards his legal costs and financial losses. It paid £310,000 of the police’s costs (Sir Cliff Richard OBE v BBC and the Chief Constable of South Yorkshire police [2018] EWHC 1837 (Ch); The Guardian and BBC online, 4 September 2019).
For whether privacy law applies to reports of arrests made in public places, see 5.11.3 in McNae’s
5.13 Accused teachers given anonymity
Section 141F of the Education Act 2002 automatically bans any publication from identifying a teacher in respect of any allegation that the teacher has or may have committed a criminal offence against a pupil of a school employing or engaging the teacher.
The ban automatically ceases to operate if the person is charged with the offence and in some other circumstances. But otherwise it is illegal to publish anything likely to lead members of the public to identify the person during his or her lifetime as being the subject of the allegation.
Therefore, it is normally unlawful, for example, to publish a report which identifies a teacher or former teacher as being accused of assaulting or sexually abusing a pupil, in a current or former teaching career, if the person has not been charged with the alleged offence. The anonymity applies even if the accusation is, for example, referred to at an employment tribunal hearing at which the person claims unfair dismissal from the school. A media organisation which plans to publish a report of the allegation should avoid ‘jigsaw identification’ – see 10.8 in McNae’s.
Section 141F was created in 2011 by an amendment to the 2002 Act, because teachers complained that they were vulnerable to false allegations.
The ban automatically ceases to operate if criminal proceedings are instituted against the person in respect of the allegation, so ceases to operate if he or she is charged by the police, or a magistrate issues a summons or warrant under section 1 of the Magistrates' Courts Act 1980, or a relevant prosecutor issues a written charge and requisition (see 5.7 in McNae’s) or a single justice procedure notice (see in 7.8 in McNae’s), or there is a bill of indictment (see the additional material for ch. 9 about such bills).
Even if criminal proceedings have not been instituted, it will be legal for a publication to identify him or her in respect of the allegation if:
- a magistrates’ court agrees to an application that the anonymity provision should be removed in the interests of justice, having regard to the welfare of the person who is the subject of the allegation, and the alleged victim (for example, a media organisation might apply to the court to be allowed to identify the person in an article if it is investigating him or her in connection with the allegation), or
- the Secretary of State publishes information about the person, in connection with a disciplinary investigation or decision under the 2002 Act’s section 141B relating to the same allegation, or
- the General Teaching Council for Wales publishes information about the person, in connection with a disciplinary investigation, hearing or determination under Schedule 2 to the Teaching and Higher Education Act 1998 relating to the same allegation, or
- the person publishes material (for example, on social media) which identifies himself or herself in respect of the allegation
- the person waives the anonymity provision by giving written consent for his or her identify to be published in respect of the allegation
If the person does give written consent to be identified—for example, because he or she wants a media organisation to publish that he or she is suffering because of a false allegation - the consent is not valid if it is proved that it was obtained by unreasonable interference with his/her peace or comfort. For best practice in the wording of such consent, see 11.6.4.1 in McNae’s.
Under section 141G of the 2002 Act, publication of anything which breaches the anonymity is punishable by fine unlimited by statute. Those liable to be prosecuted are the same as for breach of the ‘section 49’ anonymity provision covering youth court cases, see 10.3.4 in McNae’s.
Under section 141H, it is a defence for anyone accused of publishing information which breaches the anonymity to show that at the time he or she was not aware, and did not suspect or have reason to suspect, that the publication included the information in question, or that the allegation had been made.
Coverage of police work in streets
For case studies of complaints made to Ofcom by people shown in TV footage of police activity in streets or police stations, see the additional material for ch. 4 on www.mcnaes.com.
Journalists showing police ‘raids’
Police forces may invite journalists to accompany officers on ‘raids’ to search premises or make arrests there, to show the public that the law is being enforced.
For such circumstances, the College of Policing provides for police forces a ‘pro forma’ indemnity agreement for media organisations to sign. This states that it is the media organisation’s responsibility, before entering premises with the police, to obtain the occupier’s consent for entry. The agreement requires the media organisation to indemnify the force against any legal liability (including any arising from the European Convention on Human Rights) caused by any ‘wrongful or negligent act or omission’ in connection with the entry into the premises of the organisation’s ‘representative’. The form thereby seeks to ensure the media organisation is liable for any relevant legal action taken subsequently by the occupier - for example, for breach of privacy. See Useful Websites, below, for the College guidance on taking the media on police operations, which includes indemnity agreement.
Privacy law – including the particular protection it gives for people at home, and as regards the interiors of homes - is explained generally in ch. 27 of McNae’s, including the public interest defence, and ch. 35 covers trespass law.
Journalists accompanying police or other public agencies on ‘raids’ to arrest or search must normally make clear, to any owner or occupier of the property who is there, that they are journalists – unless the editor can demonstrate, in the event of a complaint, to the relevant regulator that he or she had reasonable, prior belief that a sufficiently-strong public interest justification existed for the journalist(s) not to do that. The complaint could be that a journalist’s failure to make clear who he or she was amounted to misrepresentation or deception, or was an intrusion into someone’s privacy. The journalist(s) should leave if asked to do so by an owner or legal occupier unless, again, the editor had a demonstrable, reasonable belief that there was a public interest justification sufficient for the journalist(s) to ignore such a request. For the types of journalistic activity which regulatory codes specify as being in the public interest, see 2.4.1, 2.5, 2.6, 3.4.11 and 4.1.1 in McNae’s, including about the need for ‘audit trails’, and case studies below on Ofcom and Press Complaints Commission rulings. What is audio-recorded, photographed or filmed and what is published must be proportionate to that public interest – for example, the detection or exposure of crime. If a legal occupier or property owner gives verbal consent for the journalist(s) to be there, this should be noted and ideally be recorded on film or audio at the time, so it can be proved later if need be.
Again, reporting of police operations must not breach contempt of court law designed to protect an individual’s right to a fair trial – see ch. 19. Contempt considerations may mean that photos or footage of a police operation should not, when it is published contemporaneously, show the face of anyone arrested. Again, media coverage which identifies a person as being under investigation could lead to him or her successfully suing for defamation or intrusion into privacy if no charge follows – see above.
Relatives and friends
Care should be taken in press reports of police activity not to identify any relative or friend of those accused of crime unless they are ‘genuinely relevant’ to the story or there is a ‘public interest’ justification. Otherwise, clause 9 of the Editors’ Code of Practice could be breached - see 4.13 in McNae’s and the additional material for ch. 4 on www.mcnaes.com.
Section 8 of the Ofcom Broadcasting Code says: ‘People under investigation or in the public eye, and their immediate family and friends, retain the right to a private life, although private behaviour can raise issues of legitimate public interest.’
Ofcom adjudications on programmes featuring police raids
If a complaint is made about a broadcaster filming or recording a police operation, Ofcom will consider whether the fairness and/or privacy sections of its Broadcasting Code - in particular rules 7.1 and 8.1 - have been breached. These rules are explained in 3.4.10 and 4.2 of McNae’s. The Broadcasting Code’s practice 8.3 states generally that people ‘caught up in events which are covered by the news’ still have a right to privacy. The Code’s public interest exceptions may well apply to some extent, if the programme is justified in the public interest to show the work of the police or to expose crime- again, see McNae’s 3.4.11 and 4.1.1 about such exceptions.
Ofcom guidance warns programme makers that, in covering a police ‘raid’, care must be taken that editorial control remains with the programme company (that is, such control is not passed to the police). See Useful Websites, below, for this guidance.
Case study: In 2021, Ofcom ruled that the privacy of a woman (Ms X) and her children had not been unwarrantably infringed by a production team filming inside and outside her home for a programme in the Channel 4 series 24 Hours in Police Custody or by some of the footage being broadcast in it. The programme showed the Bedfordshire police investigation into an insurance fraud committed by her then husband Anthony McGrath, an orthopaedic surgeon. He had rung police claiming that £250,000 worth of antiques had been stolen in a burglary at their home, a rented house in Luton. But police grew suspicious and later searched it. They found several of the antiques reportedly stolen were in the cellar. Another was found in a police search of a home McGrath owned in Ireland, carried out at the same time. The TV production team which followed the police during the Luton search shot footage of McGrath being arrested at the entrance to the house as it began. Shown in the programme, it included footage of Ms X, lasting approximately 11 seconds. She was wearing pyjamas and standing behind her husband in the hallway, but the production team blurred her face in what was broadcast. The programme showed the police finding some of the ‘stolen’ antiques. It also showed various decorative items in the hallway, such as paintings, details of which were blurred, and numerous photograph frames with detail of the photographs blurred. Later in a Crown court trial, McGrath was found guilty of perverting the course of justice and fraud in respect of his false report of a burglary and the insurance claim. He was sentenced to eight years in prison. Ms X was also tried in the case but acquitted on all charges. Ms X’s complaint, which she also made on behalf of her four children, concerned a repeat of the programme, broadcast after the trials, which she said had unwarrantably intruded into their privacy. She said the footage of her and of personal belongings in the home – for example, footage of a notebook given to her by her late mother - had been shot and broadcast without her consent. She said that the production team had trespassed ‘unannounced into a private home and filmed unrestricted’, and that the warrant held by the police to search the property ‘didn't cover a camera or production crew’. She complained too that the footage shot included some, lasting approximately four seconds, of two of her children as they walked away from the camera into a room off the hallway. The children’s faces could not be seen in the footage. In response, Channel 4 agreed that she did not consent, but said there was a clear public interest value in the programme, as it showed the work of the police and gave viewers an insight into the workings of the criminal justice system, including complex and costly investigation of fraud. It said that episodes of 24 Hours in Police Custody have demonstrably contributed to the public’s understanding of crime and how it is tackled by police. Channel 4 said that the filming of McGrath’s arrest was warranted in the public interest as being a crucial point of the police investigation into the serious financial fraud he committed, and had captured the nature of the investigation as disclosed to him, and his reaction, and that since Ms X had been present during that arrest, she was filmed briefly. Channel 4 said she too was a subject of the police investigation at that time (although Ms X argued to Ofcom that she was not). Channel 4 pointed out that no footage of or reference to the children was included in the programme, and that Ms X had not been visually identified or named in it, even though Channel 4 believed that identifying her in it may have been justified in law and under the Broadcasting Code, and that the programme made clear she was acquitted. As regards footage of the home’s interior, Channel 4 said that the programme was careful only to include details relevant to the police investigation. It said that the shot of the notebook was brief and did not contain any private or sensitive information relating to Ms X. No personal possessions of the children were filmed, and the programme maker ensured that any family photographs or portraits were obscured. Channel 4 pointed out too that the programme did not reveal where Ms X and her children now lived at another address, despite this information being in the public domain as a result of the extensive press coverage of the trials in the case. Channel 4 argued that as a consequence of the wide reporting in the media of Ms X’s trial, she and the children did not have a legitimate expectation of privacy as regards what was broadcast in the programme. Channel 4 said that the Luton home and its contents were an integral and inherent part of the offences Mr McGrath had committed, but nevertheless, and unlike coverage elsewhere in the media, the programme had not referred to the address of the home or its name. Ofcom ruled that Ms X and her children did have a reasonable expectation of privacy in the circumstances in which the footage was shot – noting that it was without prior warning in the early hours of the morning when the police arrived unannounced. Ofcom said: ‘We also considered that being filmed in these circumstances could reasonably be regarded as both sensitive and distressing. We also considered that the inside of a person’s home could reasonably be regarded as particularly private and personal in nature, and it is our view that ordinarily, the filming of a person in their home should be regarded as attracting a legitimate expectation of privacy. Overall, we took the view that the sensitive and private situation in which Ms X was filmed would be sufficient to fall within the scope of “private and family life” protected by Article 8 of the European Convention of Human Rights.’ Ofcom said that the children did not lose their rights to privacy because of the police’s interest in their father. However, Ofcom ruled that there was a genuine public interest in obtaining footage that conveyed to viewers an understanding of the work involved in major police operations investigating fraud. It said: ‘In our view, obtaining footage of the police arresting her husband inside his house, which incidentally captured footage of Ms X, was proportionate to achieve this end.’ It added that Ms X was not the focal point of that footage, which focussed on the police conducting her husband’s arrest and his response to this, and the footage did not reveal anything else of a particularly private or sensitive nature within her home. ‘Given these circumstances and the public interest justification of in obtaining this footage described above, we considered that the means of obtaining the footage featuring Ms X was proportionate and warranted’. Ofcom added that the programme did not make any reference to the nature of the relationship between her husband and Ms X, or the fact that Ms X had been charged with insurance fraud apart from the caption at the end saying she was found not guilty of all charges. Ofcom said that none of the children’s personal possessions had been filmed. Taking all of the above factors into account, Ofcom considered that, on balance, the broadcaster’s right to freedom of expression and the public interest in obtaining the footage outweighed Ms X and her children’s legitimate expectation of privacy in relation to the filming of the interior of their house. Ofcom reached the same conclusion as regards what was shown in the programme, noting that Ms X was unlikely to have been identifiable to the majority of viewers because they did not have prior knowledge of her and McGrath. Ms X also complained that her and her children’s privacy was unwarrantably infringed by shots of the home’s exterior shown in the programme. But Ofcom said that this footage captured no more than would be visible to the public from roads and did not capture any distinctive features of the house such as its name or number. Ofcom said that the filming and inclusion in a programme of the exterior of an individual’s home, which would be visible from a public road, alone, could not reasonably be regarded as attracting a legitimate expectation of privacy. It referred to practice 8.2 of the Code, which states: ‘Information which discloses the location of a person’s home or family should not be revealed without permission, unless it is warranted’. Ofcom said that the programme did not state the road name of the house’s address, or contain any other reference points. Ofcom therefore considered it unlikely that viewers who were not already familiar with the house would have been able to identify its location from the footage (Ofcom broadcast bulletin, No. 428, 8 November 2021).
Case study: In 2017, Ofcom ruled that the Channel 5 documentary Undercover: Nailing the Fraudsters had not unwarrantably infringed a woman’s privacy by broadcasting in 2016 footage of her being arrested in her home and of police searching it. She was named in the programme and her face shown. The documentary featured the work of the City of London police investigating fraudulent insurance claims, including her false claims that she suffered from cancer and a miscarriage and – the programme said - ‘all sorts of other misfortunes’, which had led to her getting pay-outs of almost £10,000 and being moved into a specially adapted home to cope with a non-existent disability. In 2014 she was jailed for 22 months after admitting 22 fraud charges and asking the court to take another 43 into consideration. The footage in her home had been shot originally in 2012 by a crew accompanying the police for a BBC series. During the filming she had objected to being filmed but was told by one of these original programme makers ‘you’ll be completely blurred’. Her face had been blurred when the footage was broadcast by the BBC in 2012, before her convictions. She complained that Channel 5’s re-use of it in 2016, which identified her by name and included close-ups of her face, breached her privacy by showing without her consent the inside of her home and her belongings – for example, pictures in the wall and personal paperwork. She also complained that the broadcast of the four-year old footage prevented her putting her life ‘right’, and penalised her for ‘a crime’ committed in 2012. Ofcom said that a person filmed being arrested could reasonably be regarded as being filmed in a sensitive situation, but the footage of her being questioned and arrested by police and their search did not show her engaged in any conduct or action that could reasonably be regarded as particularly private or confidential in nature. Ofcom said she had a legitimate expectation of privacy, because anyone filmed in their home could reasonably be regarded as having this. But the footage broadcast of her home’s interior did not reveal any particularly private or sensitive information about her – Channel 5 pointed out it had blurred any personal photos or personal paperwork in it. Ofcom said there was a genuine public interest in showing the work of police and challenges they face, and exploring the rise of fraud-related crime, including the cost it was having on the UK economy, and that the means of obtaining the footage of her was proportionate. Taking all factors into account, Ofcom ruled that the broadcaster’s right of freedom of expression and the public interest in filming and broadcasting the footage outweighed her right to privacy. Ofcom estimated that her convictions would not be ‘spent’ under the Rehabilitation of Offenders Act 1974 until approximately January 2019. In the circumstances, it did not consider, in her case, that her arrest and these convictions ‘could be seen to have receded into the past’. But it said, in general, that when considering whether infringement of privacy is warranted, broadcasters should periodically review repeat broadcasts of programmes such as Undercover, because – with the elapse of time – the public interest in showing depicted events and a person’s identity may no longer outweigh his or her expectation of privacy. It did not uphold, either, a complaint by her that her husband’s privacy was unwarrantably breached by him being filmed during the police search, and brief inclusion of him and his voice in the broadcast footage. The programme described him as her boyfriend, which he then was, but blurred his face (Ofcom Broadcast Bulletin. No. 330, 5 June 2017)
Case study: In 2010, an edition of Brit Cops: Frontline Crime, broadcast on the Bravo channel, showed footage – shot from the public highway – of a woman’s home being searched by the Metropolitan police robbery squad, who suspected that a man living there had an illegal sub-machine gun. The woman complained to Ofcom that the filming was unfair because she did not consent to it, and that her privacy was infringed because the footage showed images of her house. No firearm was found nor was anyone living there charged. Ofcom did not uphold her complaint. It said that although in the programme a woman’s voice could be heard in the background, she was not filmed. As her participation in the programme was minor and incidental, the programme-makers were not obliged under the Code’s fairness rule to seek her consent. The programme made clear no gun was found, did not implicate her as being involved in any offence and obscured the face of a man who was arrested. Ofcom considered that neither the woman nor her property would have been recognisable to anyone who was not already aware of the ‘raid’. No street name or house number was shown, and the location was described merely as west London, and only the exterior of the house, which was visible from the public highway, was filmed. It ruled she did not have a legitimate expectation of privacy with regard to this filming (Ofcom Broadcast Bulletin, No. 154, 22 March 2010).
Case study: In 2004, Ofcom upheld a complaint by a woman that she was treated unfairly and her privacy was infringed in both the making and broadcast of an item on the Meridian News regional programme which showed police raiding her house because they suspected that heroin would be found. The cameraman followed police into her garden and from there filmed the interior of the house through an open door. No heroin was found, though ‘drug-taking equipment’ was seized. The footage included a back view of the woman in handcuffs and in her nightwear. Ofcom said it was reasonable for her to expect privacy while handcuffed and in nightwear, and she had told the programme makers she objected to being filmed. Although her face was not shown, she would have been identifiable to people who knew her. The programme was unfair because it did not report that she was not charged with any offence (Ofcom Broadcast Bulletin, No. 6, 6 April 2004).
BBC Editorial Guidelines on ‘tag-along raids.’
The BBC Editorial Guidelines (at 7.3.4 in their privacy section) cover occasions when BBC journalists accompany police, customs, immigration, environmental health officers or other public authorities on ‘tag-along raids’. The guidelines state that journalists should only go on these when there is a public interest and after careful consideration of editorial and legal issues including privacy, consent and trespass.
The guidelines say: ‘When we go on a tag-along raid on private property we should normally:
- ensure people understand we are recording for the BBC
- obtain consent from the legal occupier and stop recording if asked to do so
- leave immediately if asked to do so by the owner, legal occupier or person acting with their authority.’
“Exceptions may include where we have reason to believe serious illegal or serious anti-social behaviour is being exposed, and the public interest will justify our continued recording or presence.
The guidelines add that Editorial Policy and Programme Legal Advice should normally be consulted about proposals involving tag-along raids. For the guidelines, which include guidance on reporting crime, and a standard Indemnity Form recommended for use with all police forces in England and Wales, see Useful Websites, below.
PCC rulings on reports of police ‘raids’
A complaint to Ipso about a journalist being present during a police ‘raid’ on someone’s home or business premises, or about how this was reported, is likely to allege breach of clause 2 (privacy) of the Editors’ Code of Practice. If there is such a complaint, an editor relying on a public interest justification must under the Code be able to explain to Ipso why he/she reasonably believed – before the complained-of journalistic activity took place and before the complained-of article was published – the activity/article would both serve and be proportionate to the public interest. See 2.4.1, 2.6, 4.1.1, 4.2 and 4.3 in McNae’s.
Case study: In 2014, the Press Complaints Commission (PCC) did not uphold a complaint made by Ann Madarbakus about a Derby Telegraph article headlined ‘Squalor: Three arrested after drug fears spark raid at “cluttered” house”’. She said it breached (what is now) clause 2 of the Code. The article was written after Derbyshire police invited a Telegraph reporter and photographer to accompany officers in a search of her home, following complaints from local residents of suspected drug-dealing and anti-social behaviour. The article said that the officers raiding her home executed a drugs warrant and a dangerous dogs warrant, and that three men had been arrested and suspected drugs, cash and six dogs seized. It said too that the home was filled with ‘rubbish and the stench of stale excrement’. It included four photographs of the interior of the property. She had not consented to the presence of journalists there. She complained that the publication of the photographs taken inside her home intruded into her private and family life. She also complained that clause 1 of the Code (requirement to avoid inaccuracy) was breached – for example, she said the house was not ‘filled with rubbish’ but that items were being stored in one area because of a redecoration. The Telegraph said that the police raid had been prompted by ‘large amounts’ of information from the community claiming that drug dealing was occurring at the property and that dogs, potentially of prohibited breeds, were kept there in poor conditions. It said that the publication of the photographs was justified to expose crime; in particular, they demonstrated the conditions in which the dogs were kept. It provided to the PCC a statement from a police inspector stating that activity at the premises was ‘dragging down the environment with crime and anti-social behaviour’, and that it was vital that the public were made aware of the police action in order to ‘restore confidence’. The statement said that the most proven way of doing this was via ‘positive media engagement’, that had been why the press was asked to attend, and that the resulting coverage was ‘necessary and appropriate’. Ann Madarbakus told the PCC that according to the guidelines of Nottinghamshire police - a nearby constabulary - the police were allowed to invite journalists onto a private property only where they had the permission of the property owner. But in this case, no such consent had been obtained, she said. The PCC said that the presence of journalists on the raid, though intrusive, was justified by a reasonable belief that the raid would reveal information that was relevant to the exposure of crime and anti-social behaviour (NB: exposure of crime, or the threat of crime, or ‘serious impropriety’ is specifically included in the Code’s public interest categories). The PCC said the publication of photographs of the interior of her home constituted a distinct and more significant intrusion, adding that a general public interest in publicising the activities of the police and improving public confidence in their effectiveness was insufficient to justify that publication. So, the PCC said, it was necessary for the newspaper to demonstrate that the publication of these photographs made a specific contribution to the public interest. The PCC said it had not been ‘easy’ to make a decision in this regard, but on balance it had concluded that publication of the photographs was justified. Firstly, it said, the home was the site of the alleged criminal behaviour and was therefore directly relevant to the claims (rather than, for example, simply being the location where arrests had occurred). The PCC noted that while no charges had been brought in relation to the raid (as of the time it considered the complaint), the raid had resulted in seizures of suspected drugs, cash, and dogs, along with three arrests. Additionally, there were broader concerns, apparently raised by members of the public, that the complainant's home and the activities taking place there, posed a danger to the health and safety of the local community (protecting public health or safety is another of the specified, public interest categories in the Code). The photographs were directly relevant to this issue, the PCC said. Therefore, it was satisfied that the newspaper had demonstrated that it had acted in the reasonable belief that publication of the photographs would be in the public interest. While the complainant said the state of the home was due to redecoration, the photographs corroborated the newspaper's description of the property, as did the comments by police, the PCC said, ruling there was no breach of the Code’s clause 1 (Ann Madarbakus v Derby Telegraph, 11 April 2014).
Case study: In 2008, the PCC upheld a woman’s complaint that a newspaper’s report of a police ‘raid’ on her home to search for stolen goods breached clause 2 of the Editors’ Code. The report was illustrated by photographs, including a pixelated shot of the woman’s 17-year-old son, handcuffed and sitting in his bedroom. The article said there were no arrests, but the woman was concerned that a reporter and photographer entered her home and took photographs without her consent. She told the PCC that several people had recognised both her son (despite the pixilation) and her home’s interior. The PCC said taking and publishing the photograph of the inside of the woman’s home was clearly very intrusive, regardless of whether the boy's face was obscured in the published picture, and there was no adequate public interest justification for this behaviour, bearing in mind that no stolen goods were discovered and no arrests made – ‘something which should have made the editor realise that using the picture would be difficult to justify in the public interest’. The PCC said it was no defence to rely on the fact that the police invited the paper on the ‘raid’ – it was the responsibility of the editor, not the police, to get the necessary consent for publication or otherwise to comply with the Code when deciding which material to publish (A woman v Barking and Dagenham Recorder, 21 October 2008).
In another adjudication, the PCC said that a Scarborough Evening News report of a police ‘raid’ in which a small amount of cannabis was found in a woman’s home breached the Code. Police had invited the newspaper on the raid. She was not charged with any offence. By showing a video and publishing a picture of the interior of her house, without her consent, the report was clearly highly intrusive, particularly because it contained information likely to identify her address, the PCC said. It added that there were two strands to the public interest defence; the first was that the footage showed an important part of local policing in operation; the second was that it allegedly exposed a specific criminal offence. The PCC said that while it may have been in the public interest to illustrate the police campaign against drugs, insufficient regard had been paid to the woman’s right to privacy. Showing the video of her home involved a degree of intrusion that was out of proportion to any such public interest (Carolyn Popple v Scarborough Evening News, 6 June 2008)
From the above cases, it can be seen that an adverse adjudication is less likely if what is published does not include pictures taken inside properties.
The evolution of privacy law in the Cliff Richard case, see above, and the Sicri case, see 5.11.2 in McNae’s, may influence Ipso adjudications in the future on whether the fact of a police search, or an arrest, is in some circumstances a private matter. How public the location was and the scale of the police activity are likely to be among factors influencing the adjudication, particularly if police have not permitted a journalist to accompany their operation and make no public comment about the reason for the raid or arrest. Ipso will consider the nature and extent of any intrusion into personal privacy, as regards any harm that has caused or might cause.
Remember, identifying a person as being under investigation by a law enforcement agency could lead to a defamation action, if the person is not charged – see 5.11.1 in McNae’s.
Protective measures, including for police informants
There is law in the Serious Organised Crime and Police Act 2005 which can provide a type of anonymity for a person if a chief constable or the head of another specified law enforcement agency, such as a Commissioner of HM Revenue and Customs or the Director of the National Crime Agency, reasonably believes the person's safety is at risk in view of the criminal conduct or possible criminal conduct of another person. This protection can be used, for example, for police informants, before or after any court proceedings begin, to protect them from violence or intimidation by criminals.
Sections 86–89 of Act make it an offence, punishable by up to two years in jail, to disclose at any time the new identities (for example, changed names and new addresses) given to such people as such protection, or to disclose other such protective arrangements. The ban is on any disclosure, not just in publications.
The Act, which is not aimed specifically at the media, sets out limited defences for anyone accused of disclosing information about the protective arrangements. There is no liability if the disclosure was made with the agreement of the protected person and was not likely to endanger anyone’s safety. Under the Act’s schedule 5 the category of ‘protected person’ can also include an informant’s relatives, or any juror, judge or police officer for whom protective arrangements have been made.
Investigation anonymity orders
Section 74 – 78 of the Coroners and Justice Act 2009 empowers a magistrate – if requested by the police or by public prosecutors – to make, without holding a court hearing, an ‘investigation anonymity order’ to protect a person assisting or willing to assist the police or the National Crime Agency during investigations into murder or manslaughter. The order can be made if the death was caused by a gun or knife and if the person likely to have committed the offence was, when it was committed, aged at least 11 but under 30 and was likely to have then been a member of a similarly aged ‘group’ apparently engaged in crime.
This anonymity protection was introduced to counter the intimidating effect of street gang culture among young people, which makes it hard to for police to get information about such killings. This law is not aimed directly at the media, but section 76 of the Act makes it an offence for anyone to disclose (other than internally and officially within an investigating or a prosecuting agency) any information that would or might identify this person to others as someone who is such an informant or willing to be one. The penalty for disclosure is a fine or a jail term of up to five years or both. A person accused of breach of the order will have a defence if he/she did not know and had no reason to suspect that the order had been made or that the information disclosed would breach it; or if the disclosure was made to someone already aware that the person given anonymity by the order was or was willing to be an informant. The ban is on any disclosure, not just in publications.
A magistrate, if requested by a relevant investigating or prosecuting agency or by the person protected by the order can cancel it if there has been a material change of circumstances since it was imposed.
Crown Prosecution Service (CPS) guidance says: ‘The granting of an investigation anonymity order does not guarantee that anonymity will be granted at the trial’. It says that a separate application has to be made by the prosecution for such trial anonymity – that is, for a ‘witness anonymity order’. See Useful Websites, below, for this guidance.
Witness anonymity orders
Sections 86 – 89 in the Coroners and Justice Act 2009 empower a court to make a ‘witness anonymity order’ that the identity of a prosecution witness should not be disclosed to the defendant (and therefore will not be disclosed in court). Defendants can also apply for an order that the identity of a defence witness should not be disclosed to the prosecution. This law is not aimed directly at the media, but breach of the order by the unauthorised disclosure of a witness’s identity can be dealt with as contempt of court. The ban is on any disclosure, not just in publications. The CPS guidance says that ‘witness anonymity orders’ made under the 2009 Act are generally for ‘those persons who have provided crucial evidence and against whom there is a substantial threat.’ The orders may be used, for example, in prosecutions of defendants alleged to be violent gangsters.
Defence lawyers may argue against such an order, because if their client is not told who is giving that prosecution evidence, it is usually harder to challenge its veracity. The CPS guidance requires prosecutors to consider if a lesser measure – for example, an anonymity order made under section 46 of the Youth Justice and Criminal Evidence Act - would suffice. See 12.8 in McNae’s for explanation of section 46 orders, which do not stop the defendant knowing who the witness is but ban anyone from identifying the witness in publications referring to the case. McNae’s chs. 10, 11 and 12 deal with other law and orders which prevent media reports of cases identifying some witnesses.
Useful Websites
College of Policing guidance: ‘Taking the media on police operations’
https://www.bbc.com/editorialguidelines/guidelines/privacy/guidelines
BBC Editorial Guidelines on tag-along raids
https://www.bbc.co.uk/editorialguidelines/guidance/indemnity-forms
BBC Editorial Guidelines about indemnity forms
https://www.bbc.co.uk/editorialguidelines/guidelines/crime
BBC Editorial Guidelines on reporting crime
https://www.cps.gov.uk/legal-guidance/witness-protection-and-anonymity
https://www.cps.gov.uk/legal-guidance/witness-anonymity-directors-guidance
Crown Prosecution Service guidance for prosecutors on ‘investigation anonymity orders’ and ‘witness anonymity orders’