Shaming the not guilty

9 January 2014, after a bit of prompting, the Information Commissioner’s Office have confirmed to me that they are looking into whether Staffordshire Police’s twitter campaign was compliant with the Data Protection Act

Is Staffordshire Police’s social media campaign naming those charged with drink-driving offences fair and lawful?

A month ago I wrote about media coverage of Sussex Police’s crackdown on drink-driving. I was concerned that the impression was being given by the media that the police were “naming and shaming” people who had merely been charged – not convicted – with the offence. I asked Sussex Police if they were happy with the words attributed to them by the Eastbourne Herald but they chose not to reply (which I suppose is one way of dealing with enquiries from the public).

I have to concede that, in that instance, it was not clear whether the police themselves were suggesting people were guilty of an offence before any conviction. However, I heard today (thanks @primlystable) that Staffordshire Police have been running a campaign which is much more overt in its suggestion that people who have been charged with drink-driving offences can be called “drink drivers”. They have been running a social media campaign using the hashtag #drinkdriversnamedontwitter, and, they announce, there has been “overwhelming support” for it

Overwhelming support #drink drivers named on twitter

Staffordshire Police has received tremendous support for its name and shame tactic to reduce the number of drink-drivers.

Nearly 500 people completed an on-line survey asking whether they supported naming people charged with drink-drive offences and whether it would help people think about the consequences of this type of offence.

But the blurring of the line in that press release between the guilty and the not-proven-guilty is highly problematic. If someone has merely been charged with an offence, it is contrary to the ancient and fundamental presumption of innocence to shame them for that fact. Indeed, I struggle to understand how it doesn’t constitute contempt of court to do so, or to suggest that someone who has not been convicted of drink-driving is a drink driver. Being charged with an offence does not inevitably lead to conviction. I haven’t been able to find statistics relating to drink-driving acquittals, but in 2010 16% of all defendants dealt with by magistrates’ courts were either acquitted or not proceeded against 1.

I asked the Attorney General’s Office (by twitter) what it thought of the use of the hashtag against the names of those merely charged with an offence, but, in saying

Tweets are same details automatically given to Magistrates’court and made public at hearing – not contempt in this case

I think they rather missed the point – it wasn’t the naming of charged people which concerned me, it was the association of the name with the hashtag. And, in an excellent response on twitter @richgreenhill said

You’d be similarly sanguine about tweeting certain names and “#phonehacker” right now?

But I’ve also asked the Information Commissioner’s Office (ICO) whether the practice is compliant with Staffordshire Police’s obligations under the first data protection principle (Schedule 1 of the Data Protection Act 1998 (DPA)) to process personal data fairly and lawfully. The ICO has shown itself commendably willing recently to challenge unfair processing, and has, for instance, served DPA enforcement notices against Southampton City Council for making it a licensing requirement that taxi drivers have continuous CCTV-with-audio in their cabs, and against Hertfordshire Police for its automatic number-plate recognition “ring of steel” around Royston. I would urge the ICO to consider whether this current campaign warrants some regulatory action.

As I was writing this piece I saw a news item in which a traffic lawyer has called for the Staffordshire Police and Crime Commissioner (PCC) to resign as a result of the campaign, saying

By his comments he is now presuming that everyone named by his officers are guilty as charged even before they have appeared before a court. In other words he is demonstrating a cavalier disregard for the presumption of innocence.

His comments have potentially prejudiced every drink driving case before it is heard.

This pitches it stronger than I have, but I also note that Matthew Ellis, the PCC, has said in response

No-one will be named where there is any doubt

That is deeply concerning: it is no part of the police’s role to determine or pronounce on someone’s guilt or innocence.

1.Ministry of Justice, Criminal Justice Statistics, Quarterly Update to December 2010


Filed under Data Protection, human rights, Information Commissioner, police, social media

16 responses to “Shaming the not guilty

  1. Trouble is, drink-driving is not an offence. Driving while over the limit is. Anyone who has a glass of wine, say, then gets into the driving seat is a drink-driver, so the tag is not inaccurate.

    Nonetheless, using emotive tags is prejudicial (think #innocent face) and they should be used with discretion. I do hope this force (and its ignorant PCC) reel back their campaign so they can concentrate their dwindllng resources on genuinely reducing those irresponsible fools who drink while over the limit.

    • That’s an interesting point… Ordinary usage though would be that a “drink driver” is someone who has committed one of the offences falling under the banner of “drink driving offences”. I concede though that on a strictly literal reading calling someone a drink driver doesn’t *have* to mean that.

      • Under that “strictly literal” reading, drinking water and then driving also makes you a “drink driver”. Or drinking a single beer on a Friday night, and then driving on the following Monday makes you a “drink driver”.
        Under a “strictly literal” reading, it’s hard to see how anyone can not be a “drink driver”, nor a “speeding driver” (if the vehicle has ever moved then it has had a speed), nor a “dangerous driver” (if they’ve ever done anything as dangerous as crossing a road).

        The “drink driver” term has quite a strong emotional shared meaning, I realise that we as a society steer away from the term “drunk driver” (ie we discourage “drink driving”, not “drunk driving” as that would wrongly imply that you have to be “drunk” to be dangerous and illegal), but the mental association is there.

    • Private

      I think the test would be what a reasonable person would think, and in that case a reasonable person would associate the phrase “drink driver” with someone driving a vehicle while unfit through drink. Note also the announcement that individuals would be named and shamed which further implies guilt. Staffs police haven’t got a leg to stand on here. They don’t get to wake up one day and decide to mete out their own form of justice.

  2. If I was editing a newspaper and asked its lawyers whether we could run a set of pictures of people under the headline, or with the caption, “Drink drivers named”, s/he would ask whether all of those pictured had been convicted of a drink driving offence. If I said no, s/he would undoubtedly advise me not to run it because there would be a severe libel risk. I don’t think the suggestion that people might not assume it meant over the limit would carry much weight at all. So this is a clear abuse of privilege, if indeed privilege even applies?

    • I agree completely. I decided not to deal with the possibility that the tweets were defamatory because of a) the complexity of the privilege point and b) the fact that, regarding those who will be subsequently convicted, a defence of justification will be unassailable!

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  4. Lee

    The practice also runs contrary to the police’s standard practice of not naming people arrested for other offences until they are charged and then when named stressing that they have been charged with an offence rather than obliquely suggesting they are guilty

  5. How long until one of those “named and shamed” (as another police force labelled their similar campaign) in this way elects for a jury trial, and then is acquitted as it’s not possible for them to have a fair trial?

  6. rex_imperator

    I struggle to understand what all the fuss is about. Details of those charged but not yet convicted are routinely pinned to the noticeboard in front of any magistrates court, every day. The press are not only welcome to attend court, but encouraged to do so and they have privileges not afforded to the ordinary public. There is a responsibility for fair and balanced reporting, so as long as they say “he is charged” not “he did it”, I really can’t see the problem. Lincolnshire also reporting names.

  7. BJM

    It has long been police practice to publicize the names of those charged with criminal offences so I do not see the issue legally. Recently they have revealed the names of arrested persons which is much more contentious.
    More broadly the police need to beware of being overbearing in their use of communications even when they believe it is in the public good. There is a sense of being part of a surveillance state and it is not good for the police to add to that. In good democratic policing less is more.

    • I stress – as I thought I had in the post itself – this is not about the mere naming of those charged. It is about tweeting the names alongside a hashtag (#drinkdriversnamedontwitter) which strongly suggest a prejudicial approach pre-trial.

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