It has become a particular problem with the investigation of historic cases following the Jimmy Savile revelations. Almost anyone in the public eye has become 'fair game' for the police and the media without a thought of the normal process of justice. The police on the one hand want to widen their investigation and want possible victims to come forward. But how they approach this must be balanced with protecting the rights that people have not to be left with allegations in the media but without prosecutions.
The question of the anonymity of the accused is once again the subject of public debate. The number of well-known people arrested as part of Operation Yewtree and other, related investigations has brought the issue into the spotlight and social media has amplified the 'repetitional damage' that can be inflicted by naming a suspect.
Now the Home Affairs Select Committee of the house of commons has called for anonymity for suspects until such time as there is sufficient evidence to bring charges. Suspects, they say, should have the same right to anonymity as that given to victims. If police need to release information about a suspect as part of an investigation then this should be through a formal process. Furthermore there should be a zero tolerance to any leaking of information by the police to the press and media.
As the Home Affairs Committee point out in their report, being arrested and held on bail is no indication of guilt. It means simply that the police have acted upon a reasonable suspicion, carried out an arrest, and wish to continue to investigate the allegation without holding the suspect in custody. This is a much lower bar than that required in a court to establish guilt, and in fact a much weaker test than the Crown Prosecution Service applies when deciding whether or not to prosecute, which requires that there is sufficient evidence to provide a realistic prospect of conviction. Yet reputations can be tarnished. In some notable cases there has been leaks of names to the media even where charges have not been brought and arrests have not been made.
The Sexual Offences (Amendment) Act 1976 initially introduced anonymity for complainants, initially only in rape cases, but subsequently extended to other sex offences, but the provisions granting anonymity to the accused were repealed in the Criminal Justice Act 1988, and accused persons currently have no entitlement to anonymity. During its inquiry into the Sexual Offences Bill 2003, the Home Affairs Committee called for anonymity for the defendant in such cases, because it felt sexual offences were “within an entirely different order” to most other crimes, carrying a particular and very damaging stigma.
Trial by social media is no substitute for the rigours of a proper investigation and trial by a court.