How different things might have been if Ghislaine Maxwell had been arrested in Hampshire — perhaps hiding out in a New Forest cottage — rather than New Hampshire? For a start, it is unlikely the Crown Prosecution Service would have been ready to charge her. The wheels of the criminal justice system grind slowly in such cases. There would not have been a televised press conference, nor would a detailed indictment have been published. Ms Maxwell, who was before a New York court last week, might have been questioned then “released under investigation” or remanded in custody.
What is certain is that she would have hired one of London’s growing band of reputation management lawyers to try to keep her name out of the media. Under our emerging privacy law those lawyers could have applied for stringent restrictions preventing any reporting of her identity as the person arrested. The detention of the world’s most wanted woman would have been hidden.
Brick by brick, the judiciary and the legal profession are building a legal wall of silence around the criminal justice system with a piecemeal law that prizes individual privacy (especially that of rich and influential people) above open justice. It is a law that says the public cannot be trusted (or lack the intelligence) to understand the difference between allegations and proven facts.
And it is a law that, couched in the language of privacy rights, will throw a veil over how the police wield their powers. On arrest, officers can deprive you of liberty, use force to restrain you and search your person and property. The privacy law being developed in our courts threatens to remove a key check on that power by severely restricting the role of the reporter as “public watchdog”.
The journey to this point began with the Leveson inquiry. Exercised by the case of Christopher Jefferies, an innocent man whose arrest in connection with a high-profile murder attracted salacious headlines, Sir Brian Leveson declared in 2012 that “the names or identifying details of those who are arrested or suspected of a crime should not be released to the press or the public”. The next leap forward came with Sir Cliff Richard’s legal action against BBC News, which hired a helicopter to film a police search of the singer’s home in connection with alleged sex offences. Sir Cliff always denied any wrongdoing, was never charged, collected six-figure damages and won a landmark judgment in 2018 when Mr Justice Mann ruled it was “understandable and justifiable (and reasonable) that a suspect should not wish others to know of the investigation because of the stigma attached”. I can just imagine counsel for Ms Maxwell parroting those words in the High Court, arguing that her right to privacy be protected.
The latest iteration of the advancing privacy law goes farther. The case of ZXC concerns a corruption investigation into the chief executive of an international company. Judges in the High Court and the Court of Appeal have ruled that ZXC’s privacy was infringed when Bloomberg reported how a British law enforcement agency was seeking international assistance in its inquiries into him and his company.
The courts acknowledged that the criminal inquiry into the firm was a matter of public knowledge and public interest. The accurate report of the fact of the investigation into ZXC, however, was an infringement of his individual privacy. This right to privacy, judges ruled, must apply to all investigations: “To be suspected of a crime is damaging, whatever the nature of the crime — it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion.”
There is a real danger that this judge-made law will place a blanket ban on the reporting of any criminal investigations until they reach the point of charge. Had the Epstein-Maxwell case been in the UK, the media would have been silenced.
Has the judiciary considered the consequences of this prohibition? Often in the cases of serial sex offenders, such as Max Clifford, publicity about investigations brings forward other victims and strengthens the prosecution case. In the cases of dangerous fugitives or murder suspects the media offer a public service when publicising the fact they are being sought by police.
Equally important is the role of the media in scrutinising abuse of police power. In a 30-year career as a reporter I have frequently covered cases of misconduct. Identifying those wronged by police action is an essential part of any such story. In 2018 two Ulster journalists were arrested in 7am raids as police hunted the sources behind their documentary about police collusion in a terrorist massacre. This heavy-handed policing was exposed because the media could report their stories. It took the courts two years to catch up and declare this month that the police conduct was “woeful”.
What would have happened to Lotfi Raissi — arrested in London in September 2001 and wrongly accused of mass murder by training the 9/11 hijackers — if reporters like myself had not chipped away at the case against him drummed up by the FBI, Scotland Yard and the CPS? If that case had been wrapped in secrecy (sorry, privacy) Mr Raissi might be in an American supermax jail now.
Now, when alleged racist conduct by police is under the spotlight, it is vital the media be able to scrutinise cases where police use excessive or unnecessary force during arrests.
There is an important debate to be had on privacy and the media. That debate must allow for the role of the press in investigating misconduct and mistakes by police and agencies that wield power on behalf of the state.