Parliament must set the rules on privacy

The tension with freedom of expression should be resolved by politicians, not by ad hoc judicial rulings

It must be truly horrific to be publicly, and wrongly, named as the alleged perpetrator of a sex crime. It is easy, therefore, to sympathise with the judgment in Sir Cliff Richard’s case.

It established a new legal principle: that a person under investigation by the police, but not arrested, has a reasonable expectation that he should not normally be named by the police or the press. The judge did not say that people under investigation should never be named, but that there should be a presumption that to do so before they have even been arrested will be an unlawful breach of privacy.

However, we need to sound a note of caution.

First of all, this has thrown the law into confusion. It was all very well for Mr Justice Mann to make the point that sometimes publicity about a suspect will be justifiable, but his judgment does almost nothing to clarify exactly when that will be. What about naming a person arrested, or released on bail, or charged? After this judgment your guess is as good as mine.

Secondly, although the fear that professional criminals will exploit the ruling to protect their reputations may seem fanciful, we need to be sure that the press and the police are still able, when necessary, to name names.

The current College of Policing guidance says the police should do so only where there is “a threat to life, the prevention or detection of crime or a matter of public interest and confidence”. This is hopeless. “Public interest” is far too vague, and while “the detection of crime” sounds reasonable, that is exactly how some attempted to justify the publicity given to Sir Cliff ’s investigation: hang him out to dry and see how many others are attracted by the smell of metaphorical blood, or the allure of real money.

Thirdly, any law needs to be able to be applied not just to reputable newspapers and broadcasters but to disreputable ones, too, plus freelance tweeters and vloggers. They can do as much harm to individuals as mainstream outlets, and the threat of litigation is little deterrent to them because they seldom have the money to be worth suing. There is an argument for a new, tightly defined, criminal offence if the right to privacy is to have any real meaning. Restricting freedom of speech with the criminal law, however, has obvious dangers.

Sir Cliff ’s case perfectly illustrates the tension between competing human rights: that of privacy protected by Article 8 of the European Convention and that of freedom of speech protected by Article 10. Where should the balance lie? If Parliament avoids the issue, the courts will continue to do the best they can, but it would be far less chaotic – and more honest – if the law were put on a clear statutory footing.

That certainly does not mean state regulation of the press. It does mean as much legal clarity as possible over exactly what factors the police, the press and broadcasters should consider when deciding whether to name suspects. It should also help to ensure that it is not just those rich enough to litigate who are protected from unwarranted publicity.

There may already be areas where there is a broad consensus that naming a suspect is justifiable and should be lawful: where there is an imminent threat to life, for example, or real grounds to suspect that a person is in serious danger if a suspect is not named. Open justice obviously demands that defendants should normally be named at trials, but different considerations arise as an investigation develops. There is a much stronger argument for naming suspects once they have been charged.

Should there be special rules for suspects in sex cases, which undeniably carry a special stigma? In fact, there already are; complainants have lifelong anonymity even if they are disbelieved. Should suspects also have such rights?

None of these questions permit of easy answers, and legislation can never cover every eventuality. But they are all questions better answered by Parliament – as far as possible – than by judges making ad hoc decisions.

Clear legislation, arrived at after proper debate, would be as much in the interest of the press wishing to avoid uncertainty and expensive legal action as it would be in the interests of innocent people who have the terrible misfortune to be falsely accused.