The majority of the UK press has identified the police officer arrested on suspicion of murdering London woman Sarah Everard, despite a precedent set by Sir Cliff Richard’s BBC privacy win that suspects should not be named before they are charged.
(Update 15/3/21: Met Police diplomatic protection officer Wayne Couzens, 48, has been charged with murder)
The Sun was the first to name and picture the suspect on Wednesday and many quickly followed suit. The Met Police described him only as a man in his 40s who was a serving Metropolitan Police officer in the Parliamentary and Diplomatic Protection Command.
He was pictured on the front pages of the Metro, Sun, Daily Mail, Daily Express, Times and Daily Telegraph on Thursday. Some have also named his wife, who was arrested on suspicion of assisting an offender.
It is likely editors are counting on the public interest case for naming him being stronger than other recent cases because he is a serving police officer who has been arrested on suspicion of kidnap and murder.
The suspect has not been named by broadcasters including the BBC, ITV and Sky News on TV or online. They fall under the same laws but are generally more cautious due to their regulation by Ofcom.
Three major rulings have set a precedent that suspects should not be named before charge.
The High Court in 2018 found that broadcasters and journalists normally have no right to name someone under criminal investigation in its landmark judgment in favour of Sir Cliff Richard, who had been named by the BBC while under investigation for sexual offences. (Richard, who denied all allegations, was never arrested or charged and the case against him later dropped.)
The BBC said it believed the judge had “erred in law” with this conclusion but decided not to appeal as he was “unlikely to overturn his overall decision given all the other factual findings made against the BBC”.
Last year the Sir Cliff “chilling effect” hit Bloomberg after the Court of Appeal rejected the news agency’s challenge to a ruling against its reporting of an ongoing criminal probe into a businessman.
Mr Justice Nicklin said the Sir Cliff case, along with a body of case law, showed “in general a person does have a reasonable expectation of privacy in a police investigation up to the point of charge”.
An analysis by legal firm 5RB said: “The decision is likely to have significant ramifications for the media reporting of criminal investigations before the suspect has been charged.”
The BBC was told to pay Sir Cliff £210,000 in damages, while Bloomberg was ordered to pay £25,000.
Thirdly, in January this year Mail Online publisher Associated Newspapers was ordered to pay £83,000 in damages after naming a man arrested on suspicion of involvement in the 2017 Manchester Arena terror attack, but who was never charged.
Media law consultant David Banks told Press Gazette: “In Cliff Richard v BBC and the more recent case of Sicri v Mail Online, the publishers were not able to establish that naming those involved was in the public interest.
“The facts of the present case are very different though and one might argue that the arrest of a serving police officer is a clearer matter of public interest than in previous cases.
“Whether the papers who have named the officer are correct in this view will very much depend on what happens next in this investigation.”
The BBC’s former home affairs correspondent Danny Shaw wrote on Twitter that the case was a “test of the legal ruling in the Cliff Richard case”.
“Naming suspects is not illegal,” he said. “But if a suspect, named by media, is released without charge s/he could sue for breach of privacy, as Cliff Richard did. This is one legal risk media outlets will be weighing up. That’s why [a] Tory MP arrested last year for alleged rape wasn’t named.” (The case against the MP was later dropped).
A couple wrongly arrested after drones brought Gatwick Airport to a standstill in the run-up to Christmas 2018 could have brought “strong” claims for invasion of privacy against the newspapers that pictured them on their front pages, according to a media law specialist.
However they have not chosen to do so, although they were awarded £200,000 in compensation and legal costs after suing Sussex Police for wrongful arrest and false imprisonment.
Contempt of court
As well as privacy considerations, the case against the suspect in the murder of Sarah Everard has been “active” under contempt of court law since the arrest was made.
So publishers should avoid publishing anything which would create a substantial risk of serious impediment or prejudice to a trial.
Given the long time period before any trial is likely to take place, publishers have more latitude to write about the case than they would, say, on the eve of the trial.
Any reporting which suggests the suspect is guilty, especially anything mentioning previous crimes, is a potential issue.
So reporting of an alleged indecent exposure incident involving the Everard case suspect is potentially questionable.
Attorney General Michael Ellis published a warning on Friday afternoon that his office was monitoring media coverage of the case.
He said he “wishes to amplify the importance of the requirement not to publish any material that could create a substantial risk that the course of justice in these proceedings could be seriously impeded or prejudiced. This includes publishing information online.
“Publishing this information could amount to contempt of court and could affect the fairness of any future trial.
“In particular, the Attorney General draws attention to the requirement not to publish material that asserts or assumes the guilt of anyone who has been arrested. That is an issue to be determined by the jury if in due course there is a trial.
“The Attorney General also wishes to remind journalists and members of the public that it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect, and matters adverse to his character, the admissibility of which a judge in due course may need to determine.”
Picture: Metropolitan Police