In a world where fake news, speculation and misinformation can spread across social media like wildfire, a means of contradicting the most dangerous of lies becomes a necessity. This was brought home to us all in the wake of last year’s Southport killings, when a viral misinformation campaign which wrongly identified the perpetrator, Axel Rusakubana, to be a Muslim immigrant, led to widespread rioting, racial violence and clashes with police.
In addition to calls for the swift correction of misinformation, there has been mounting pressure placed on the police to release suspect information. A media spotlight was recently placed on Warwickshire police, who were accused of a ‘cover up’ by Reform UK, over their not confirming the immigration status of two men (reported to be Afghan asylum seekers) charged with raping a 12-year-old.
The latest interim guidance released by the College of Policing and NPCC follows a call for ‘greater transparency’ by the Home Secretary. Police are now being advised to confirm the ethnicity and nationality of suspects in sensitive or high-profile cases if:
- There is a policing purpose to do so
- There is a related risk or impact on public safety such as rising community tensions
- Mis or disinformation leading to community tension
- A significant level of media or social media interest.
This is a significant divergence from previous guidance, under which only a suspect’s name, date of birth (and possibly address) was generally publicised.
At first glance the notion of challenging misinformation with truth might seem sensible - even obvious. But in reality, such a change in policing policy could create as many dangers as it seeks to prevent.
Any information the police release has the potential to skew public perceptions. During the high-profile police search for Nicola Bulley, for instance, the sharing of information about her health and alcohol-use, which an independent College of Police review later deemed ‘avoidable and unnecessary’, fuelled an unhelpful media narrative that problems in her personal life might have contributed to her disappearance.
When approaching issues as potentially divisive as race and faith we need to be even more mindful about the impact of the information we share with the public. Divulging details about a suspect’s ethnicity could actually serve to fuel misinformation, myths and stereotypes about certain groups in society, acting as catalysts for tensions. There is also a considerable risk of misuse, as hate groups and other unscrupulous individuals could use information to further negative stereotypes and perpetuate a group-based framing of crime.
The burden on police
With no definition of what will fall under ‘policing purpose’ the guidance places an unnecessary burden on commanding officers to decide which information to share on a case-by-case basis. It is also unclear whether the police should release a suspect’s ethnicity and nationality in response to unrest, or in anticipation of it. Police are therefore being left with the unenviable task of predicting which cases will spark unrest and whether sharing information will reduce tensions or make them worse - while bearing full responsibility if they get it wrong.
The guidance also leaves the police exposed to conspiracy accusations if they choose to withhold information. This could very easily become a political football, as we saw in Warwickshire earlier this month.
Potential impact on a fair trial
Releasing the ethnicity or nationality of suspects could also encourage biased media coverage and result in cases of ‘trial by media’. Conducted outside the tightly controlled vacuum of a courtroom, these could risk jeopardising a suspect’s right to a fair trial, as jurors may have been exposed to potentially prejudicial reporting before the trial begins.
While it is an offence to publish any material that creates a ‘substantial risk of serious prejudice to active court proceedings’, what information can be released while a trial is pending is currently under review by the Law Commission. This is now more important than ever, to ensure guidance is in place which focuses on long term consequences; rather than reliance on ad-hoc police decisions that place greater value on the immediate need to calm an anxious community.
How important is privacy?
Anyone suspected of a criminal offence has a reasonable expectation of privacy. Until recently, the impetus has been towards further strengthening these rights and in most cases, an individual will not be named publicly until charged with a criminal offence.
This trend has been spurred on by high profile cases that have demonstrated the damaging effect privacy breaches can have upon those subject to police investigations, but never charged with any criminal offence. The widespread media reporting of the police search of Sir Cliff Richard’s home in 2014 being one notable example. The 2012 Levenson Report into press ethics also encouraged a more cautious approach, ensuring that any disclosure was both in the public interest and proportionate.
Now it would seem the tide is turning again with more details about a suspect being capable of release. But as so often happens, this shift in policing policy is not being instituted after careful debate, or by a thoughtful consideration of the facts, but as a knee-jerk reaction to the latest media obsession.
What is needed is a sensible, well thought-out solution to combating misinformation in the digital age, which takes into consideration all the potential advantages and consequences of changing the police guidance. Instead, we are left with yet another hastily devised policy shift which in practice will likely create just as many problems as it resolves.
Simply because information is newsworthy it does not necessarily follow that it is in the public interest for it to be released, or that people will act within the spirit of the guidance and use it wisely.
Kate Chanter is a criminal litigator and advocate at BCL Solicitors LLP
