Introduction

This document is designed for people with a criminal record who want to understand where they stand in relation to their past criminal record being reported in the media.

A wide definition of media is used, including all forms of online reporting. It also considers the publicising of your criminal record by public authorities involved with crime and justice, which may be the source of information for media reports.

Why can, or should, the media report criminal convictions?

What does the law say?

Under English Law it is a general principle that criminal court proceedings for adults should be held openly and in public. The verdict and sentence are normally given out in open court and so are in the public domain. The media therefore have the right to publish the outcome of all such criminal court cases.

Criminal court proceedings for juveniles taking place in Youth Courts are different. Under the Children and Young Persons Act 1933, the public is generally barred from attending Youth Court proceedings, with the exception of the media, who can attend but are prohibited from publishing the name, address or school or anything that is likely to identify a person under 18 as being concerned in proceedings, whether as a victim, witness or defendant (sections 47, 49). However, the restriction in relation to a child or young person who has been convicted may be lifted by the court, if it is satisfied that it is in the public interest.

For more information on reporting restrictions, see Reporting Restrictions in the Criminal Courts (Judicial Studies Board, Newspaper Society, Society of Editors and Times Newspapers Ltd; 2009).

What is the Government’s position?

In recent years, under both the previous Labour Government and the current Government, there has been a push for justice not only being done but being ‘seen to be done’. This has led to increased efforts to publicise sentences given to individuals. In December 2009 the Home Office announced, through the following two publications, proposals to actively promote the publicising of convictions to local communities for about a month after sentencing.

• Publicising criminal convictions (Ministry of Justice, Home Office and Attorney General’s Office; 2009)
• Publicising sentencing outcomes: Guidance for public authorities on publicising information (including via the internet) about individual sentencing outcomes within the current legal framework (Office for Criminal Justice Reform; 2009, updated 2011)

These reports propose that local communities are informed about the criminal convictions and sentencing of adult offenders living in their area (including their names and a ‘summary’ of their address) through the use of leaflets, public meetings, local newsletters or websites.

It is argued that there is a gap in local accountability due in part to the decline of court reporters and consequent reporting of fewer case outcomes in the local media. Thus these proposals are intended to increase public confidence in the criminal justice system and to reassure the public that justice has been done, whilst also deterring potential offenders. According to Publicising Criminal Convictions, 65% of the public think that is important for the public to be provided with information on the sentences handed out to offenders locally, whilst only 24% feel informed about what is happening locally to people convicted of offences. Whilst the more serious an offence is, the more likely it is to attract media attention, it may be that less ‘serious’ offences cause most concern locally and so encouraging publicity of such cases may be most able to increase public confidence in services.

More generally, the report states that, ‘As they are a matter of public record, the presumption should be in favour of publicising verdicts and sentences of Crown and magistrates’ courts in the great majority of criminal cases’. This includes the following where they are imposed as part of a sentence: fines, community sentences, absolute and conditional discharges, Financial Reporting Orders and Travel Restriction Orders.

Will details of my conviction be published?

If the media or local authorities involved with crime and justice plan to report your conviction, they probably already have. How can you find out? Google your name, or the details of your offence. Look back to local paper records around the time you were convicted.

In addition to the potential for media coverage of your sentencing, it could also be publicised in a range of ways by local authorities, for instance through leaflets, newsletters or websites. Although the report Publishing Sentencing Outcomes states that such publicity is not intended to provide the basis for an ongoing record, it is difficult to see how recording conviction, particularly on websites, can avoid this. The report recommends that when publishing details online, public authorities state that ‘the information on this page must not be stored, recorded, republished or otherwise processed without the explicit agreement of [name of the public authority]’. However, as others have noted, this ‘seems a vain hope in today’s information-wise society.’

The reporting of ‘spent’ criminal convictions

What are the rules on reporting spent convictions?

The publication of ‘spent’ convictions by the media can breach the provisions of the 1974 Rehabilitation of Offenders Act (ROA). Under the ROA, your conviction becomes spent at the end of a specified ‘rehabilitation period’ (so long as you have not been given any further convictions during this time). To calculate when your conviction will become spent, you can visit www.disclosurecalculator.org.uk or find out about other ways here.

The length of this period varies depending on the length of the sentence. However, if the prison term is more than four years (both immediate and suspended), or was an extended sentence for public protection, then the conviction will never become spent.

Under the ROA, when a conviction has become spent, it is as though, for most purposes, it has never occurred. You are not obliged to disclose a spent conviction, and you should not be prejudiced as a result of one. This means that in law, for a media organisation to report your spent conviction amounts to an untruth, meaning that they are open to accusations of defamation.

It is not a criminal offence to report a spent conviction, so the ROA does not impose a criminal penalty on journalists or media organisations who do so. As a result of the ROA, technically, anybody reading about the spent conviction shouldn’t use that information in a way that disadvantages you in any way. Of course, this is difficult to prove, and even if you could prove it, there is little you can do.

What can I do if the media reports my spent conviction?

If details of your spent record are reported in the media, you could try contacting the organisation/publication and ask them to remove reference to it as it has now been ‘wiped out by law’ – whilst this term isn’t technically accurate, for the purposes of ‘reporting’, it should have the desired effect.

If your conviction is recorded online, you will need to ask the organisation on whose website it appears both to remove it and to advise Google that any cached references need to be removed.

Suing a media organisation for defamation

If your request for the removal of a record of a spent conviction is not followed, you could inform the organisation that you consider the continued publication of the conviction as ‘malicious’ and commence legal proceedings against them. You are entitled to make a claim for defamation against a media organisation that reports your spent conviction. If proven, you would win the libel case and be paid damages for the effect that the reference to this conviction has had on your reputation. Sometimes, the threat alone is enough for them to act.

If you were to make such a claim, the organisation would, however, have various defences open to it, including:

• The defence of justification. This allows the media to report things that can be shown to be true without fear of legal action. However, this defence fails if you can show that your conviction is spent and that the arguments about malicious intentions apply since this would mean that there was no public interest in referring to the conviction.
• The defence of fair comment. This allows opinions about public figures relating to a conviction they have (even if it spent) to be published, if they are honestly held opinions and can be shown to be in the public interest. This defence works on the assumption that the actions of those in public positions (e.g. politicians) are open to public scrutiny.
• The defence of privilege argues that the public interest in freedom of speech outweighs the rights of the individual making the claim for defamation. Qualified privilege can be used by the media to enable them to make fair and accurate reports of a conviction, or to quote words from a case.

However, any of these defences can be rebutted if it is proven that there was no public interest in reporting this material or that the statement was reported with malice. Malice is defined in law as ‘published with an irrelevant, spiteful or improper motive’ (Herbage v Pressdram 1984). The burden of proving malice in such a case would rest on you, and is very difficult to do so in practice.

What usually happens in practice?

The BBC’s Editorial Guidelines, which tend to be the benchmark for broadcasters, include no mention of spent convictions. The section on privacy is of most relevance here. They state that ‘an individual’s right to privacy is also qualified by their behaviour. People are less entitled to privacy where their behaviour is criminal or seriously anti-social.’ The guidelines include a list of examples of public interest, some of which may be used by media organisations in justifying their reporting of spent convictions.

There is no single definition of public interest, it includes but is not confined to:
• exposing or detecting crime
• exposing significantly anti-social behaviour
• exposing corruption or injustice
• disclosing significant incompetence or negligence
• protecting people’s health and safety
• preventing people from being misled by some statement or action of an individual or organisation
• disclosing information that allows people to make a significantly more informed decision about matters of public importance
There is also a public interest in freedom of expression itself.

In practice, newspapers tend to take a pragmatic approach about the likelihood of libel litigation set against the copies sold. Most news journalism can argue that it is serving some kind of public interest by making revelations about past convictions, including ‘spent’ convictions, and that there is no malice. This means that the media can publish the details of, and comments, on ‘spent’ convictions without fear of libel law suits and the consequences in terms of paying damages if the case was lost. Nevertheless, the potential level of hassle should hopefully mean that if you initially make a request for the media to remove references to your spent convictions, it should have the desired effect. If it doesn’t, you should complain to the Independent Press Standards Organisation (details below).

The situation is also complicated by online records of convictions. Once a conviction is online, and so in the public domain, the media can quote it in their outlets since they are not ‘revealing’ anything new, just stating a known fact. Nobody’s data is being invaded if past news sources are quoted and privacy rights are not being compromised. This seems to be true even in the case of ‘spent’ convictions. If the conviction is on record, it is likely that in certain situations the media are able to justify the ability to publish these details even though it is spent.

Furthermore, even if you are successful in getting information removed by the ‘host’, it is possible that this information has been collected on a number of other websites, and so the task of requesting them each individually to remove the information can be time consuming.

Is there anything I can do if…?

The details published about my conviction are inaccurate?

If a report of your conviction contains inaccurate or misleading information, you should contact the relevant organisation and ask that they correct the information, providing them with the relevant accurate information.

If a media organisation refuses to correct the information you should complain to the Independent Press Standards Organisation. You may also be able to make a complaint to the Information Commissioner’s Office if personal information about you is inaccurate.

Publicity about my conviction is causing harm to others or to me (beyond my objection to the publicity)?

Disclosure of a sentencing outcome can inadvertently reveal personal information about a person other than the person convicted. The Publicising Sentencing Outcomes report advises local authorities to take particular care in such situations, noting that even if the court did not consider it necessary to impose formal reporting restrictions, there may be cases where disclosure may nevertheless cause harm (for instance, where the relevant facts were not before the court at the time).

It suggests that it might not be appropriate to release information which:

• could be used to identify offenders’ families (over and above a shared surname), especially if disclosure would place them at risk of harm (e.g. reprisals)
• could be used to identify victims or witnesses, especially if this would cause the victim undue embarrassment or distress, or place them at risk of suffering reprisals, or expose them to unwanted media or public attention

The guidelines also recognise that care should be taken if the individual with a conviction is known to have a specific vulnerability (e.g. mental health issues or physical ill health), which might mean that publicising the conviction ‘risks unwarranted adverse consequences’ (i.e. not simply that the offender objects to the publicity). This may arise in particular if the sentence includes a drug or drink rehabilitation order or a mental health disposal.

In such cases, the guidelines argue it is not necessarily unlawful to disclose any information at all. For instance, it might be possible to address the concern by limiting the information to a small number of individuals (e.g. the community affected by the crime), by giving it out in a meeting or leaflet rather than putting it on a website so it will only be seen by people in the local area and it will be less easy to copy. In a particular case, it may be possible to reassure a community by making it known that a conviction for a specific offence has been secured without the need to disclose personal information (for instance, it might be possible to give details of the sentence without disclosing that the sentence involved a mental health disposal).

If you feel that a local authority which is reporting your conviction is not taking appropriate steps in such cases, it would be worth contacting them and citing this guidance (although note that it is not legally binding). If a media organisation is at fault, you could try contacting them and hope that they see this guidance as relevant, although it is intended for public authorities involved with crime and justice, rather than the media. You could also contact MediaWise, who provide free and confidential advice and support to members of the public on the receiving end of inaccurate, intrusive, unfair or irresponsible journalism.

A local authority is still publicising my conviction six months after the sentencing?

If a local authority is still publishing your conviction (even if it is not spent) after six months, it is worth contacting them. This is because the proposals outlined in Publishing Sentencing Outcomes advise local authorities that they should publicise sentencing outcomes to local communities in a manner that is ‘‘timely’ and ‘time-limited’’. More specifically, it recommends that ‘as a rule of thumb… convictions remain publicised for no longer than a month, and that any such publicity material (web page, leaflet, posters) be removed within six months of the conviction being recorded’.

Therefore, if you are aware that a local authority is still reporting your conviction after six months, it is worth asking them to remove the reference (refer to the Publishing sentencing outcomes report). However this is not legally enforceable, as the report notes. ‘Removal of the relevant material within the suggested time limits is not a specific legal requirement under the Data Protection Act 1998.’ In this situation, you might find it worthwhile to contact your local MP to ask them to contact the local authority on your behalf.

Useful organisations

The Independent Press Standards Organisation is an independent self-regulatory body which deals with complaints about the editorial content of most newspapers and magazines (and their websites). They monitor industry standards by training journalists and editors, and work pro-actively behind the scenes to prevent harassment and media intrusion.

The MediaWise Trust provide advice and support to those affected by inaccurate or unfair press coverage and those considering selling stories.

The Information Commissioner’s Office provide details on data protection problems, and have details on how and when to make a complaint.