Naming and shaming the innocent

Around this time last year I wrote two blog posts about two separate police forces’ decision to tweet the names of drivers charged (but not – yet, at least – convicted) of drink driving offences. In the latter example Staffordshire police were actually using a hashtag #drinkdriversnamedontwitter, and I argued that

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

The Information Commissioner’s Office investigated whether there had been a breach of the first principle of Schedule One of the Data Protection Act 1998 (DPA), which requires that processing of personal data be “fair and lawful”, but decided to take no action after Staffs police agreed not to use the hashtag again, saying

Our concern was that naming people who have only been charged alongside the label ‘drink-driver’ strongly implies a presumption of guilt for the offence. We have received reassurances from Staffordshire Police the hashtag will no longer be used in this way and are happy with the procedures they have in place. As a result, we will be taking no further action.

But my first blog post had raised questions about whether the mere naming of those charged was in accordance with the same DPA principle. Newspaper articles talked of naming and “shaming”, but where is the shame in being charged with an offence? I wondered why Sussex police didn’t correct those newspapers who attributed the phrase to them.

And this year, Sussex police, as well as neighbouring Surrey, and Somerset and Avon are doing the same thing: naming drivers charged with drink driving offences on twitter or elsewhere online. The media happily describe this as a “naming and shaming” tactic, and I have not seen the police disabusing them, although Sussex police did at least enter into a dialogue with me and others on twitter, in which they assured us that their actions were in pursuit of open justice, and that they were not intending to shame people. However, this doesn’t appear to tally with the understanding of the Sussex Police and Crime Commissioner who said earlier this year

I am keen to find out if the naming and shaming tactic that Sussex Police has adopted is actually working

But I also continue to question whether the practice is in accordance with police forces’ obligations under the DPA. Information relating to the commission or alleged commission by a person of an offence is that person’s sensitive personal data, and for processing to be fair and lawful a condition in both of Schedule Two and, particularly, Schedule Three must be met. And I struggle to see which Schedule Three condition applies – the closest is probably

The processing is necessary…for the administration of justice
But “necessary”, in the DPA, imports a proportionality test of the kind required by human rights jurisprudence. The High Court, in the MPs’ expenses case cited the European Court of Human Rights, in The Sunday Times v United Kingdom (1979) 2 EHRR 245  to the effect that

while the adjective “necessary”, within the meaning of article 10(2) [of the European Convention on Human Rights] is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable” and that it implies the existence of a “pressing social need.”
and went on to hold, therefore that “necessary” in the DPA

should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends
So is there a pressing social need to interfere with the rights of people charged with (and not convicted of) an offence, in circumstances where the media and others portray the charge as a source of shame? Is it proportionate and fairly balanced to do so? One consideration might be whether the same police forces name all people charged with an offence. If the intent is to promote open justice, then it is difficult to see why one charging decision should merit online naming, and others not.But is the intent really to promote open justice? Or is it to dissuade others from drink-driving? Supt Richard Corrigan of Avon and Somerset police says

This is another tool in our campaign to stop people driving while under the influence of drink or drugs. If just one person is persuaded not to take to the road as a result, then it is worthwhile as far as we are concerned.

and Sussex police’s Chief Inspector Natalie Moloney says

I hope identifying all those who are to appear in court because of drink or drug driving will act as a deterrent and make Sussex safer for all road users

which firstly fails to use the word “alleged” before “drink or drug driving”, and secondly – as Supt Corrigan – suggests the purpose of naming is not to promote open justice, but rather to deter drink drivers.

Deterring drink driving is certainly a worthy public aim (and I stress that I have no sympathy whatsoever with those convicted of such offences) but should the sensitive personal data of who have not been convicted of any offence be used to their detriment in pursuance of that aim?

I worry that unless such naming practices are scrutinised, and challenged when they are unlawful and unfair, the practice will spread, and social “shame” will be encouraged to be visited on the innocent. I hope the Information Commissioner investigates.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

3 Comments

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

3 responses to “Naming and shaming the innocent

  1. Patrick

    Just came across this:

    http://www.bristolpost.co.uk/Suspended-Chief-Constable-facing-complaint/story-24506518-detail/story.html

    In particular (from the article):


    Both had emphasised their commitment to transparency during their tenures and, in a letter to the Post, Mr Gargan wrote: “I believe that the public has a right to expect the highest standards from its police service and, therefore, the fact that a member of the service has been charged is itself a matter of public interest – even though that person may be tried at court and found not guilty.

    “For that reason, it will in future be our policy to name members of Avon and Somerset Constabulary who are charged with offences.”

    I wonder if anybody has tested this, since Avon and Somerset seem to be one of the forces to be naming members of the public in this way?

  2. I’ve been thinking about this from a DPA perspective, I suspect those caught up could issue a section 10 notice and that the Police forces involved would have no option other than to comply.

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