Reporting crime in the wake of the Human Rights Act 1998: privacy, criminal justice and the media in England & Wales

Historically, the media has been subject to relatively few restraints in the reporting of the criminal justice process. Indeed, publicity has traditionally been seen as integral to the very process itself: for justice to be done, it must be ‘seen to be done’. Provided reports were not defamatory and did not interfere with the fair and proper administration of justice, the media had largely free reign to report on criminal investigations. Suspects could be named, victims usually identified and, subject only to the laws of contempt, details of the status of police investigations could be published. When a criminal matter reached the courts, the inviolate principle of open justice prevailed: the media had a right to publish fair and accurate reports of court proceedings, no matter how damaging, humiliating or embarrassing such reports may have been. The legal protection of privacy following the introduction of the Human Rights Act in the UK provides a legal basis to curtail the media’s reporting of crime on privacy grounds. This chapter maps the impact that the right to privacy under the HRA has had on media’s capacity to report on the different stages of the criminal process in England and Wales – the investigation, trial, and post-sentence stages. It demonstrates that the impact of the HRA has been most apparent at the pre-trial (investigation) stage, where there is now a ‘general rule’ is that a police suspect cannot be named until they are charged. In contrast, priority continues to be given to the principle of open justice at the trial stage, leaving little scope to restrain reporting of the criminal courts on privacy grounds. Finally, at the post-sentence stage, a growing jurisprudence suggests that access to media reports of historical criminal data might need to be restricted once convictions become ‘spent’; however, unlike comparatively ‘bright line’ rules at the investigation and trial stages, the analysis in relation to the publication of historical convictions is governed by a careful balancing of interests