The fine line between disclosure and human rights

After a short absence, Chris - no one's favourite former Lord Chancellor - Grayling was back in the news this week. The Leader of the Commons called for MPs to be permitted anonymity should they be arrested for crimes alleged to have been committed in their private lives, bringing to an end the centuries-old ritual of being named by the Speaker.

Without any obvious acknowledgement of irony, human rights protections were cited as the principal reason for the change by famously Eurosceptic Grayling, who fought to scrap the Human Rights Act while justice secretary. The argument put forward relied on MPs being afforded the same article 8 right to privacy as their constituents, but critics fear the rule change will provide MPs with an enhanced protection and 'special treatment' from the police and press.

With only one MP dissenting after a short hour of debate, the motion passed and the rules were changed. Labour's John Mann became the hero of the hour, stating that the 'principle is wrong and that practice is wrong'. He went on to tweet an example to highlight his concerns: 'If an MP is arrested for alleged child abuse, parliament and the public will not be told until charging. I think that is wrong.' In an online poll carried out by the Daily Mirror, an overwhelming 98 per cent of the public agreed with him.

Parliamentarians have a vested interest in maintaining their personal privacy, so is it right they should be the ones to determine this change in procedure? Although crimes that relate to their role as an MP will be excluded from the change, who will say what is and isn't related? If MPs are to enjoy this enhanced right to privacy, should it also extend to others in public office, such as the judiciary, councillors, and the police themselves?

Of course, the law at present means that the police should only name a citizen after they have been charged if there are exceptional circumstances. Of late, it has all too often been the press who have claimed responsibility for the public disclosure of those who have been arrested, especially where they are public and 'celebrity' figures. This comes in spite of Lord Justice Leveson's report into media ethics, in which he stated that arrested suspects should only be named by the media in 'exceptional and clearly identified circumstances'.

There is no doubt that press coverage can play an important role in mitigating risk to the public where there is an ongoing threat - and in such limited circumstances these rules should continue to apply - but where should that discretion lie? At present, it is for the police to make that assessment, on a case-by-case basis, but unfortunate leaks within the system have placed a greater responsibility on the media.

Although there remains a tacit acknowledgement that an arrest is not a finding of guilt, there is little doubt that if or when made public it can have a profound effect on a lifetime's reputation. Those in public office and those in the public eye may never recover, so if there is to be a genuine right to privacy before charge and a restriction on reporting arrests, this should be a right enjoyed by everyone and any diversion from that should be determined not by the police or the press, but by an independent authority - the judiciary.

In next week's Solicitors Journal, we'll be featuring our interview with Paul Gambaccini, where he discusses the effects of wrongful accusation, a trial by media, and a bail process lasting 18 months. Shorter arrest periods, as called for by Gambaccini and others, will do much to assuage the press and, perhaps, the police.

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