Privacy vs. the right to know

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What should media reveal about police investigations?

I once was investigated by the police on suspicion of break and enter.

The year was 1983. I was working at The Herald and received a call from a Royal Newfoundland Constabulary (RNC) officer, informing me that a car with my license plate number was observed leaving the scene of a burglary.

I offered to come down to the station to straighten the matter out, which wasn't difficult since the description of the car was something big, red and American, whereas my car was small, beige and made in Japan. The witness had obviously erred in writing down the plate number.

As a reporter, I had something of a public profile at that time. So if news of the investigation brief though it was had reached the media, I might have been in the news: Police question media person in break and enter case' or even Local reporter observed leaving crime scene'. Had this happened, serious harm would have been done to my reputation.

You can see where I'm going with this. On occasion, the media will get wind of an investigation and, if the case is highly sensational or the person involved is a public figure, may even report it as news.

The pizza store child porn story of 2006 is a good example. In February of that year, RNC Chief Richard Deering held a news conference to announce that his force was investigating a child sex ring that could involve as many as 40 victims with possible suspects outside this province.

Deering handled this whole thing badly, of course, though he did have his back against the wall. The talk radio shows were ablaze with gossip about the child sex ring' and the media were chasing the story. Nonetheless, Deering should not have gone public with that much detail, since so much of it was unconfirmed and ultimately incorrect.

Later in 2006, the police dropped the majority of charges against the pizza store manager. The man, who acted alone and was not part of a sex ring, was eventually convicted.

At least, in this case, the individual was guilty of a crime. However, a good number of police investigations do not result in charges being laid. Sometimes there is insufficient evidence, other times a crime hasn't even been committed and occasionally there are false accusations. What happens when the person under investigation is innocent?

It is my belief that police investigations should not form the substance of news stories. More precisely, police should not report the names of those under investigation until a charge has been laid.

Randy Piercey, a defence lawyer in St. John's, goes one better than that. It's his view that names of accused individuals should not be released until after they have been convicted.

"My experience has been with people who are not just being investigated but actually charged, because they don't come to see me until that point," Piercey said in an interview. "I still have some issues with that though because I can think of two cases in particular One was a case where a gentleman had retired and was alleged to have done a sexual act against one of the Mount Cashel (sexual abuse) complainants when he was supposedly still working. So the charge was laid. My client had threatening phone calls. His house was egged. His wife got threatening phone calls. A couple of days before we were to do the preliminary inquiry, they realized that they had the wrong guy altogether. A couple of years after that I saw him and he had gotten very sad and stayed very sad."

Strangely enough, I know the case to which Mr. Piercey refers because I worked at t The Sunday Express, the paper that published this story. If memory serves, we actually ran with the story while it was still an investigation, before any charges were laid. The laying of charges does vindicate that editorial decision, I suppose, but I have since changed my way of thinking on this issue.

"I know of another case where a gentleman got charged with sexual assault for which he was totally innocent he was a retired man who had worked hard all his life, raised his family and would meet with his buddies for coffee every morning. After he got charged, his buddies wouldn't meet with him anymore. He was acquitted, found not guilty, and I personally believe he was innocent, that they had the wrong man altogether. But that man lost a lot of his friends. Some stuck by him and some didn't And once you've been charged and found not guilty, I think many people assume that you just got away with it."

For this reason, Piercey feels that names of individuals should not be released when they are charged. "I fully understand that there are all sorts of constitutional issues with that and I am a big believer in the media. I think they are very important I've had guys charged and found not guilty, and still they've had their lives ruined."

I contacted Paul Davis, spokesperson with the RNC, to inquire about the force's policy regarding the sharing of information around investigations.

"The RNC is asked regularly to identify victims of crime and from time to time asked to identify or confirm the identity of suspects," he said. "We do not normally identify either victims or suspects. Normally we only identify persons who have been charged with offences and even then it is done cautiously. Once an information is sworn, the matter becomes public. From time to time a court will order a publication ban or other restrictions so we must always be cautious.

"I have commented many times on the importance of protecting the integrity of an investigation. The release of certain information including identities of suspects, victims or witnesses is frequently not in the best interest of an investigation and we must do what we can to be fair in all investigations."

Regarding how often an investigation actually results in charges, Davis said this "varies widely" depending on the type of crime and nature of the complaint.

"However it is not unusual to investigate a matter, have a suspect and later determine the evidence does not support the grounds necessary for the laying of charges. There are times when it is learned a person identified as a suspect is not at all responsible."

In a post earlier this week, Gerry Phelan of VOCM news said that VOCM's policy is not to announce names of people charged with a crime until there is a conviction, with the exception of murder charges.

Telegram managing editor Russell Wangersky was also willing to weigh in on this topic. He pointed out that one of the biggest successful lawsuits in the country was won because media reported on a police investigation.

"Tom Farrell won a suit against The Telegram and the CBC based on their stories (originating from) a leaked police report the judge's argument being that the media outlets had to prove that the contents of the report were true. Here's the thing: reporting on investigations is a tricky thing, because an investigation merely means police are looking into some kind of untested allegation."

Wangersky agrees that names should be given only when someone is actually charged with an offence.

"A charge is a matter of public record, and, as such, is essentially out there anyway. What we attempt to do is to follow a case through the entire process charges, prosecution, defence, verdict. That's pretty much the best we can do. I don't think it's as simple as banning the names of those charged until the end of a trial - that would just turn the whole thing into a whisper campaign anyway, because the dockets would still be plainly available to the public."

There seems to be some consensus on not reporting names of those under investigation, but still, it happens from time to time.

"We have reported when people are under investigation," Wangersky said. "I think there's a judgment call involved every time, though."

There may indeed be circumstances when the public good is served by reporting the facts of an investigation such as when someone is going door-to-door, committing fraud we just need to withhold names.

We could leave it to individual media outlets to decide their policies on reporting investigations. But in a competitive field, all it takes is one newsroom to report a controversial investigation for many others to follow suit. The only way to ensure that identities are not revealed prematurely is to legislate against doing so. We can do this easily, by revisiting federal and provincial privacy legislation, which is seriously broken and needs to be fixed.

I have written previously that our overzealous privacy laws have shut down public accountability and need to be revisited. In a nutshell, all adults should have the right to waive privacy rights when embroiled in a dispute with an organization that requires some form of explanation or accountability.

While we're fixing that problem, we could add a new clause to privacy legislation, making it illegal to name individuals who are under investigation.

After all, this is an issue of privacy.

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Recent comments

  • Peter
    July 27, 2010 - 14:53

    I agree that reporters shouldn't rely on police source(s) to run a name in a story. It would have been a real shame if your name was made public back then.

    But I strongly disagree that laws should be put in place preventing it.

    But let's not forget about investigative reporting. There's nothing stopping a reporter from taking that police tip and independently confirming from multiple sources that someone is up to no good, then reporting the story name.

    Good reporting can even PROMPT police investigations. Yes, it may put people out of business, destroy reputations, get people fired, end marriages or put people in jail. These are the ugly side-effects of catching people doing bad things to good people. But isn't that what cops and government agents do all the time? We want them to protect us. The media protects us too, albeit with lesser power than the government. I view journalism as a public service. I feel I have enough working against me as it is, and would not want rules preventing me from naming names when I have
    have the goods.

    The thing is, you best be right if you point the finger at someone. Otherwise you'll end up hurting an innocent and paying defamation damages, or losing your job- and rightly so.

    Or maybe not. Fact is, the Ontario Supreme Court ruled last year, that a reporter doesn't even have to be right in naming names - they just have to have acted responsibly and without malice and have enough proof to have reason to believe someone is guilty.

    It's often a reporter's job to raise legit questions - and yes make allegations and provide evidence - and then let the cops or whomever take over. this doesn't happen all the time, but it is a legitimate and important part of our job. Removing the power to name people eviscerates the press.

    Reporters are allowed to make honest mistakes just like cops and crown attorneys - not that anyone would wish that. Should every Crown lawyer and cop working on a case that ends in a not guilt verdict be fired or have new laws enacted against them to control them? Hardly.

    Naming people is important. The public often don't care about about important stories unless they can wrap their heads around a name. It engages people in the process and leads to appropriate action. It also focusses attention where it should be, on the accused and not on the innocent people in a similar or nearby group that can get tarred by the same brush under a cloud of suspicion.

    Readers, viewers and listeners - like juries and journalists- should keep an open mind and remember people are innocent until proven guilty.