Chapter Fifteen - Transparency, confidentiality and role of the media
15.1 In the preliminary report I said that I would give further consideration to the whole question of privacy, the public interest and the role of the media. In that report I supported the principle of transparency, which allows systems to be easily understood and which facilitates public, parliamentary and media scrutiny while respecting both the necessary confidentiality of any disciplinary process and the privacy of individuals and their families. I also noted the intense media and public scrutiny surrounding a number of high‑profile issues and problems in the early years of Police Scotland and the SPA. I discussed the need for confidentiality at the early stage of a PIRC investigation to avoid deterring or intimidating potential witnesses or subjecting officers or their families to media attention when there is still very often no evidence available to support allegations and certainly no 'prima facie' case.
Legal background - Social media posts and contempt of court
15.2 Where the Crown Office and Procurator Fiscal Service (COPFS) is made aware of comments posted online which relate to an ongoing criminal case and which may create a risk of prejudicial pre-trial publicity, consideration is given as to whether its publication meets the test set out for contempt of court. The Contempt of Court Act 1981introduced 'the strict liability rule' whereby conduct may be treated as contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.
15.3 A number of options are available to the Crown. In the first instance, COPFS may decide to take no action, may warn the author about their conduct, or ask them to remove the publication and refrain from further similar comments until the trial has concluded.
15.4 Where the Crown is of the view that a publication undoubtedly amounts to a contempt of court and carries a significant risk of prejudice to a case, consideration will be given to petitioning the Court for contempt.
15.5 In an effort to prevent the publication of online commentary presenting a risk to ongoing proceedings, the Crown has recently taken the proactive approach of posting the following warnings on the COPFS Twitter account:
"When an individual is arrested or an indictment is served the Contempt of Court Act 1981 applies. The court may consider that any information published which creates a substantial risk that justice is seriously impeded or prejudiced is 'contempt'."
"Contempt is punishable by up to two years in prison and/or an unlimited fine. The law is used by the court to protect the integrity of proceedings, preserve access to justice of victims and to secure the rights of the accused."
"Court is the only appropriate public forum for the discussion of matters of fact or law in live criminal cases. Any published information – including online – that creates a substantial risk of prejudicing justice may be contempt of court."
The media and the police
15.6 The relationship between the police and the media was summed up in 2017 by McGovern and Philips in Police, Media and Popular Culture:
"The relationship between the police and the media is complex, multidimensional, and contingent. Since the development of modern-day policing, the police and the media have interacted with one another in some way, shape, or form. The relationship has often been described as symbiotic, and can be characterized as ebbing and flowing in terms of the power dynamics that exist. For the police, the media present a powerful opportunity to communicate with the public about crime threats and events, as well as police successes. For the media, crime events make up a significant portion of media content, and access to police sources assists journalists in constructing such content. But the police–media relationship is not always cosy, and at times, tensions and conflicts arise. The increasing professionalization of police media communications activities has further challenged the nature and scope of the police–media relationship. Not only has the relationship become more formalized, driven by police policies and practices that are concerned with managing the media, but it has also been challenged by the very nature of the media."
15.7 The police staff associations in their evidence to the Review referred to instances of 'trial by press', the propensity for an officer to be named instantly on social media at the very earliest stage of an allegation of misconduct or criminality, and the imbalance in media coverage when someone is subsequently exonerated. They also described their perception that social media and the press gave a disproportionate voice to individuals who had been through the complaints process but remained dissatisfied.
15.8 The media do of course carry the risk of being sued by a police officer for defamation but the costs of pursuing this action are often prohibitive. In Scotland an individual may also seek an interim interdict or prohibition from the court preventing publication of defamatory material. Such a court order has immediate effect until a full hearing takes place; this prevents publication until such time as a Judge can rule on the matter in question.
15.9 During the Review I met with senior members of the press who questioned the level of understanding within, and across, Police Scotland of the principle and importance of freedom of expression and the media's role in delivering that.
15.10 High public office carries with it legitimate and well understood expectations of public scrutiny, accountability and transparency. In principle the higher the office, then the greater the expectation that the holder of that office will be subject to more external public, parliamentary and media scrutiny. There is a public interest in transparency around police misconduct proceedings, particularly in relation to senior police officers, and that is why I have recommended in the Evidence from other jurisdictions chapter at page 296 that all gross misconduct hearings should be held in public.
15.11 High expectations of police officers have to be balanced against individuals' rights under Article 8 of the European Convention on Human Rights (ECHR) to respect for their private and family life. Those high expectations do not legitimise or justify the improper, or even illegal, leaking of personal information to the media, and Police Scotland should deal with leaks of sensitive information by members of the police service relating to conduct matters as a breach of the statutory Standards of Professional Behaviour or Code of Ethics.
The media and the public
15.12 ECHR Article 8 rights also come into play when considering the relationship between the media and the public. The media have a responsibility to consider the rights of an individual and their family early on during an investigation, particularly in a serious incident involving a death. (In deaths and serious incidents where the PIRC are carrying out the independent investigation the police have a responsibility to refrain from making any public comment but should leave that to the PIRC.)
15.13 The issues around police, public and press relationships are not new. Lord Justice Leveson completed his inquiry into the culture, practices and ethics of the press in 2012. In his report he said that:
"The public must be kept aware of policing concerns and must engage in the debate. Therefore the press also has a vital role: it must encourage the public to engage in the criminal justice system by coming forward with evidence; it must facilitate that assistance and it must applaud when criminals are brought to justice as a result. The press must also hold the police to account, acting as the eyes and ears of the public."
15.14 While banning publication may not be in the public interest, restricting a publication which would be likely to impede an investigation, particularly at the early stages, could be in the public interest.
15.15 Publicity or the prospect of being named, particularly at the earliest stages of an investigation, can have an inhibiting effect on the willingness of witnesses to come forward to give evidence. Members of the press pointed out to the Review that an inhibiting effect can also work in the other direction where a member of the public who is concerned about police wrongdoing takes evidence to the newspapers but the newspapers are seen to do nothing about exposing that wrongdoing. That might make it less likely that a well‑intentioned member of the public would report wrongdoing in the future.
Transparency and confidentiality
15.16 Until 2018 the PIRC had adopted the practice of putting into the public domain information relating to the investigations it was carrying out into the conduct of senior officers on receipt of the referral from SPA. At the point when a referral is received by the PIRC from the Scottish Police Authority there has been no more than a preliminary assessment of the complaints or allegations. I raised my concern with the then Commissioner in the early stages of the Review and this practice has since ceased. On 6 November 2018 the then Commissioner confirmed this change of practice to the Justice Committee of the Scottish Parliament, "In light of our experience last year, we agree that there should be confidentiality around the process and, like the SPA, have determined that in future we will not normally provide comment on senior officer misconduct investigations."
15.17 While the principle of transparency is appropriate in relation to many of the functions of public bodies it is not always appropriate in relation to any public body charged with investigating allegations of misconduct or criminality at the earliest stages. Investigations into such matters should be confidential temporarily, not only to protect individual and family privacy when the investigation is only at a very early and crucial stage, but in order to create a safe space in which witnesses feel more comfortable to come forward with their evidence against senior and powerful people/officers as well as for those giving exculpatory evidence. There may be a time for transparency about the outcomes but not while the investigation is at its earliest stages, is ongoing or the decision on any action yet to be determined.
15.18 Premature publication of information and unauthorised disclosure of sensitive information, from whatever source, detracts from the efficacy of the investigation, may create unhelpful and distorted speculation, place potential witnesses under immense pressure and cause profound reputational damage without good cause.
15.19 The current publication policy of the PIRC is that, other than confirming whether the PIRC has been requested by COPFS to investigate potential criminal conduct or matters of misconduct referred by the SPA, or to rectify inaccurate information, all information relating to any criminal investigation or allegations of misconduct of officers remains confidential to protect the integrity of the investigation and to avoid reputational damage without good cause.
Comparison of PIRC and IOPC publication policies
PIRC publication policy
15.20 Stage 1 (New investigations) - The PIRC normally publishes brief details of any new referrals of investigations on their website. They consider that it is appropriate to be open and transparent about their work, within applicable restrictions. It may be appropriate to give general details of what they have been asked to investigate, in response to a media query. In such a scenario, any family members (of someone injured or deceased) involved are notified in advance.
15.21 Stage 2 (During an investigation) - The Communications Team will not provide further details to the media while an investigation is ongoing, unless it is considered appropriate to make a witness appeal.
15.22 Stage 3 (Concluded investigations) - The Communications Team may publish a brief update on their website and Twitter site, once the investigation has been concluded, intimating that a report has been submitted to the relevant referring body.
15.23 Where the Communications Team become aware that the media intend to publish anything in relation to an investigation where proceedings are 'active' there is an onus on the Communications Team to ensure that the media are immediately made aware of the 'active' status of the proceedings.
15.24 The Communications Team may also require to advise the media that publishing information from either a civil case, or from any other sources, may prejudice a live PIRC investigation or any future criminal proceedings. Should the media ask for the name of the arrested officer, it should be given unless there is an operational reason for not doing so. This would be given verbally. This policy is based on the advice given in the amended guidelines issued by the Lord Advocate for Police and the Media.
15.25 PIRC publish summarised reports of some of their findings and recommendations on their website once an investigation is concluded. These are also e‑mailed directly to the media. They consider that it is appropriate to be open and transparent about their work, within appropriate restrictions.
15.26 The decision to publish is based on whether there is significant organisational learning for the police and taking into account the historical nature of the case.
15.27 The reports do not normally include any details that may lead to identification of family members, witnesses, officers, or civilian policing staff. The name of a deceased may be included if it is already in the public domain. In this instance, written permission requires to be obtained from the family.
15.28 Reports from the PIRC to COPFS relating to criminality are confidential and would only be published with the permission of the COPFS.
15.29 Media responses in relation to complaint handling review (CHR) cases must not contain names, ages, location or any other details that may identify those involved. CHR reports are published weekly on the website, with a link posted on the PIRC Twitter site. These reports must be anonymised with names, addresses, place‑names and other details removed that may lead to identification of those involved.
Independent Office for Police Conduct (IOPC)
15.30 The IOPC carries out a similar role to that carried out by the PIRC in Scotland.
15.31 The amount and nature of the information that the IOPC includes in public statements varies and depends on a number of factors including:
- the stage of the investigative process
- the public interest and seriousness of the issues that are being or have been investigated
- the outcome of any investigation
- the imperative not to prejudice legal proceedings
- the IOPC's responsibilities under the data protection legislation and Human Rights Act 1998
15.32 The naming of police officers and members of police staff in public statements must be seen in this context. Where the IOPC is considering naming an officer or staff member it will, as far as possible, give that officer or staff member a minimum of two weeks' notice, during which that officer or staff member may make written representations. Notification will be given to officers or staff members through the relevant appropriate authority.
Inhibition of witnesses
15.33 The Review asked both Police Scotland and the PIRC for any evidence they had of witnesses being reluctant to come forward for fear of publicity. The PIRC is unaware of any witness failing to co-operate with an investigation (criminal or misconduct) for fear of publicity. There have been occasions however, during PIRC investigations into misconduct allegations, where witnesses expressed concern about their identities becoming known.
15.34 Police Scotland are aware of instances where civilian complainers and/or witnesses have either failed to engage with a misconduct investigation or, at a later stage, failed to appear at proceedings simply because they had lost interest, had moved abroad, were anxious about the process, or were unwilling to engage as a witness. Police Scotland were not aware of any cases where a withdrawal was as a result of concerns around media interest.
Balancing freedom of expression and the right to respect for privacy
15.35 The Review sought the advice of Douglas Ross QC on the very finely balanced issue in respect of Article 8 rights to respect for private and family life on the one hand and Article 10 rights to freedom of expression on the other, in this particular context.
15.36 As I observed in my 2017 report for the then Home Secretary: "Disciplinary action against police officers, and decisions not to instigate such action, must be transparent in order to safeguard public confidence, and to give greater certainty to the police themselves."
15.37 Article 10 gives journalists considerable latitude to express controversial views and opinions, on the basis that the freedom of the press and other news media affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. However, in 1992 the European Court of Human Rights (ECtHR) stated that "the press must not overstep the bounds set, inter alia, for the protection of the reputation of others".
15.38 Article 10 includes the right to receive information, not merely to impart it. The ECtHR has repeatedly held that the public has a right to be informed by the press of matters of important public interest.
15.39 It is always the case that the context in which a newspaper or other publication presents controversial material is likely to make a considerable difference when the courts, or others, assess the extent to which it is protected from prosecution or civil action by Article 10.
15.40 The principle of freedom of expression applies to online media in the same way as it does to print media. Website owners are free to decide for themselves which material they wish to publish, and it is not a breach of freedom of expression for a website to moderate comments in order to remove material which might prove offensive.
15.41 The ECtHR has repeatedly emphasised the importance of freedom of expression. In one of the first major judgements on Article 10, it stated that its supervisory functions:
"… oblige it to pay the utmost attention to the principles characterising a 'democratic society'. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man."
15.42 The freedoms protected by Article 10(1) are not unqualified. Article 10 states:
"(1) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
15.43 ECHR Article 8 cannot be relied on in order to complain about a loss of reputation which is the foreseeable consequence of one's own actions, and that is a fact which in this context will inevitably have a greater relevance the more senior the office that a police officer holds.
15.44 The Independent Press Standards Organisation (IPSO) is the independent regulator for the newspaper and magazine industry in the UK. Its stated aims are to hold newspapers and magazines to account for their actions, protect individual rights, uphold high standards of journalism and help to maintain freedom of expression for the press. IPSO publishes the Editors' Code of Practicewhich "balances both the rights of the individual and the public's right to know".
15.45 The Code of Practice states that:
- There is a public interest in the freedom of expression itself.
- Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
- Editors will be expected to justify intrusions into any individual's private life without consent.
- The public interest includes detecting or exposing crime, or the threat of crime, or serious impropriety.
15.46 In relation to policing there is a distinction to be drawn between criminal matters and misconduct matters. The treatment of individuals and the treatment of publication of material should not be governed by the same level of constraints. The protections in relation to criminal matters are stronger, for example, because they engage ECHR Article 6 rights (Right to a fair trial).
The Cliff Richard case
15.47 The balancing of rights was considered by the courts in 2018 in relation to the case of Sir Cliff Richard v the BBC and South Yorkshire Police, the first issue which the Judge had to decide was whether Sir Cliff's Article 8 rights were engaged. That depended on whether he had a reasonable expectation of privacy. Whether an individual has a reasonable expectation is not always a question which is easy to answer. It has been described as:
"… a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."
15.48 The Judge's conclusion in the case was that Sir Cliff's privacy rights were not outweighed by the BBC's rights to freedom of expression. The question of whether the existence of a police investigation is something in relation to which the subject has a reasonable expectation of privacy had not been clearly judicially determined. The judgement ruled that: "as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation".
Publication of information and investigations
15.49 Publication of information in relation to investigations carried out by the PIRC in relation to senior Police Scotland officers is problematic because of the small number of those senior officers and the likelihood that a name, even if not published, will find its way into the public domain in an uncontrolled way. That could constitute a breach of Article 8 rights so it is right that no names should be disclosed where the PIRC is carrying out an investigation into alleged criminal conduct. There may be circumstances in which the restriction in relation to a PIRC investigation of a conduct matter may be less stringent. The current practice adopted by the PIRC in their publication policy (as set out above) strikes the right balance between providing an appropriate level of information to the press while being sensitive to the need to protect the identity of officers under investigation (and potentially witnesses and complainers) at the earliest stages of the investigation.
15.50 It is good practice for the PIRC not to issue a news release in normal circumstances. Information should not be put proactively into the public domain but be carefully considered when a request or press inquiry is received.
15.51 Any decision to withhold information needs to be supported by a compelling public interest justification for doing so. While it would be viewed as a breach of Article 10 rights for government to legislate to prohibit certain press activities in this area, it could be possible to put the press on notice that where they breach an individual's Article 8 rights they may face the prospect of providing a remedy for that individual. For example, the PIRC could publish a warning that referring to an investigation which at the time is confidential, is done by the press at their own risk and may constitute a breach of rights under Article 8 (Respect for private and family life) and may be prejudicial to the outcome of the investigation. If however the effect of certifying an investigation as confidential would include prohibiting or restricting reporting by the media, that would involve an interference with the right to freedom of expression enshrined in Article 10. The PIRC has no power to prohibit or restrict reporting by the media that would involve an interference with the right to freedom of expression enshrined in Article 10.
15.52 The ECtHR attaches the highest importance to freedom of expression on political issues and matters of general public concern. That certainly includes alleged police malpractice. It is likely that the Court would consider there to be a higher level of legitimate public interest in reporting of allegations of wrongdoing on the part of senior officers.
15.53 It may also be impracticable and/or undesirable to keep the fact that an investigation is taking place out of the public domain. The public interest in knowing that serious allegations against the police are being investigated may apply to at least some investigations of misconduct falling short of criminality.
15.54 There may be circumstances in which greater transparency is required, but once a PIRC investigation is concluded, publishing reports setting out the conclusions without including names or identifying information about police officers involved seems, as a general rule, to strike a reasonable balance between the public interest in transparency and the Article 8 rights of the officers concerned.