Anonymity Before Charge: Important Changes
Gavin Irwin outlines the key provisions of the new Anonymity (Arrested Persons) Bill
On 21 January 2020, the Anonymity (Arrested Persons) Bill had its first reading in the House of Lords. The short, draft Bill contains 9 clauses.
It is stated to be a Bill to prohibit the publication of certain information regarding persons who have been arrested until they have been charged with an offence; to set out the circumstances where such information can be published without committing an offence; and for connected purposes.
Clause 1 provides that:
Where a person is arrested for an offence, neither their name nor address, nor any still or moving picture of that person may—
(a) be published in England and Wales in any publication available to the public in written, electronic or any other form, or
(b) be included in a relevant programme for reception in England and Wales,
if it is likely to lead members of the public to identify that person as the person by whom the offence is suspected or alleged to have been committed.
Under clause 1, the prohibition on publication will continue to apply unless and until the person is charged with the offence for which they were arrested.
Clause 7 provides that:
- “publication” includes a film, a soundtrack and any record in permanent form, and any publication on an internet site based in England and Wales, but does not include an indictment or other document prepared for use in particular legal proceedings; and,
- “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.
Under clause 3, a breach of the prohibition will constitute a summary offence punishable with a maximum of 6 months’ imprisonment or a fine not exceeding the statutory maximum (or both).
(A defence will be available to a person charged under clause 3 where at the time of the alleged offence they were not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the prohibited matter in question.)
Clause 2 provides an exemption to the prohibition – a Crown Court judge may direct that the prohibition shall not apply where such a direction is:
(a) required to comply with the Human Rights Act 1998;
(b) in the interests of justice; or
(c) otherwise in the public interest.
The interests of justice expressly include circumstances where removing the prohibition:
(a) may lead to additional complainants coming forward
(b) may lead to information that assists the investigation of the offence
(c) may lead to information that assists the arrested person
would undermine fair trial rights:
(d) the conduct of the arrested person’s defence at trial is likely to be substantially prejudiced if the direction is not given.
In its draft form, the Bill provides that an arrested person will be able to challenge such a direction.