Naming suspects in criminal cases opens up ethical minefield

After extensively reviewing the conduct of the press in the UK, Lord Justice Leveson strongly argued that people merely suspected of having committed a crime should be protected from being identified.

He advised:

… save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.

However, in Channel 7’s Million Dollar Cold Case series, Victoria Police forcefully rejected that advice.

In harnessing the power of the media to help solve stalemated murder investigations, Victoria Police named or disclosed significant information about those who were suspected of, rather than charged with, committing serious criminal offences.

This practice is inconsistent with the policies of many other police forces. For instance, the College of Policing (the professional body for police in England and Wales) has adopted guidelines consistent with Lord Leveson’s recommendation.

Other police forces do not name suspects until after they have been charged, save in exceptional circumstances where there is immediate risk (such as a terrorist attack with an identified suspect at large).

The Million Dollar Cold Cases

As the television series emphasised, in each of the 10 cases presented the Victorian government has offered a A$1 million reward for anyone who provides information that leads to the apprehension and subsequent conviction of the killers. There is also the possibility of granting indemnity to anyone involved in the crimes.

Offering rewards and indemnities, with associated media coverage, is not unusual. What is exceptional is that, with the assistance of the Homicide Squad Cold Case Unit of Victoria Police, the series identified and provided detailed information about “persons of interest”.

Police usually justify the disclosure of this information by pointing to the interests of the victims’ families, the difficulty in investigating cold cases (crimes that have been extensively investigated by police but remain unsolved) and the public interest. Victoria Police also justified the identifications on the basis that the information was previously disclosed in coronial investigations.

The devastating effect of these unsolved homicides was clearly evident in the distress of the many family members and friends who described their loss and the impact of the crime on their lives.

And it is certainly true that examining crimes committed years, sometimes decades, ago presents real challenges.

But does the public interest favour disclosure? And how can it be offset against the traditional reluctance to identify suspects before they are charged?

The ethics and practice of naming suspects

The traditional reluctance of police to release the names of suspects is grounded in good principles and policy. Key concerns are the presumption of innocence, reputational damage, and the right to a fair trial.

• In relation to the presumption of innocence, police who appeared in the program were careful to state that they were not accusing anyone. In particular, they were not suggesting that the identified persons were guilty of the killings. But whether those disclaimers have much impact is doubtful.

• Damage to reputation can be significant for people who are suspected of having committed a serious crime. While they are unlikely to sue for defamation, people who are incorrectly identified as responsible for a crime become part of a public record that is searchable and permanent.

• The prospect of adversely affecting the right of a person to a fair trial because of the negative pre-trial publicity is real, especially when extensive information is released about the crime and clear links are made to the accused.

Is suspicion enough to publicly link people with crimes?

Million Dollar Cold Cases deals with one of the central and enduring dilemmas of policing. When investigating crimes, police officers often identify persons they believe are responsible, but for whom they lack sufficient evidence to prosecute.

As Claude Mincini, a retired detective previously involved in one of the murder investigations in episode one, observed:

I know in my heart of hearts who was involved in this murder. But I can’t prove it.

Police are mindful of the high threshold – proof beyond reasonable doubt – needed to get a conviction in our criminal courts. So, in these cold cases, they have collaborated with the media.

While the success rate of cold case operations appears to be low, obtaining new information from witnesses is the most significant factor in determining whether these cases will be solved – hence the police interest in collaborating with the media to publicise them.

Whether the identification of suspects in this dramatised television series can be justified on the basis that the information was previously released in coronial investigations is worth exploring.

However, it must be noted that police simply don’t have enough evidence to successfully prosecute the people identified as “persons of interest” or suspects. If they did, we would be seeing these cases progress through the courts rather than watching them on television.

In an age of pervasive mass communication, this controversial collaboration between police and media highlights the tension between protecting people suspected of (but not charged with) serious criminal offences and police use of the media to assist in crime investigation.