I dislike the ‘right to be forgotten’ regime but it may be good news for open justice.

Like most journalists I cheered at reports that the Court of Appeal had ruled that newspapers should be able to name an individual arrested but never charged, much less convicted, in connection with a high-profile sex case.

This is partly for selfish reasons: current police practice of releasing only tantalising details – ‘a 24-year-old-man from Sunderland was arrested’ - until someone is charged leaves us in a dicey legal position if we go on to identify the individual (or, worse, get it wrong).

But there is also an argument on principle, that every stage of justice involving adults should be open unless there are exceptional and compelling reasons otherwise.  

Of course my enthusiasm for transparency might diminish if I was in the position of PNM, the appellant in PNM v Times Newspapers Limited and ORS [2014] EWCA Civ 1132 , who, reasonably enough, felt that his reputation would be harmed by being associated with the hugely publicised Oxford child-grooming and prostitution affair.

But PNM does not face exposure because of the mere fact of his arrest. In her provisional ruling against the appellant - whose anonymity remains in place pending decisions on an appeal to the Supreme Court - Lady Justice Sharp was defending newspapers’ rights to report court proceedings, during which details identifying PNM emerged.

As she stressed, the ordinary rule that the press may report everything which takes place in open court is ‘a strong rule both domestically and in European jurisprudence and can only be displaced by unusual or exceptional circumstances’.

So, even if the Supreme Court agrees, this is a long way from an open licence to name arrested individuals. So far as journalists are concerned, the guidelines of the Association of Chief Police Officers still stand – that ‘save in clearly identified circumstances... the names or identifying details of those who are arrested or suspected of a crime should not be released by police forces to the press or the public’. News organisations that speculate further do so at their peril. 

Is this balance right? My preference would be for the police, as a matter of routine, to publish the names of those they arrest and to take the consequences themselves when they get it wrong. Far from arrest records stigmatising individuals, open publication would emphasise the point that arrest does not equal guilt much more clearly than the current system of nudges, winks and rumour.

If necessary, discrimination based on someone’s arrest warrant could be made a criminal offence. And, much as I dislike the ‘right to be forgotten’ regime that has emerged following May’s Google Spain court decision, individuals who feel strongly now have a clear mechanism for removing facts about past arrests – at least from search engine results.

I’d be interested to know Gazette readers’ opinions. 

Michael Cross is Gazette news editor

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