Why media were able to report the identities of Andrew Mountbatten-Windsor and Peter Mandelson as they were arrested

When someone is arrested and under police investigation, we usually don’t know their names. Police reveal only their gender, age and the crime for which they are under suspicion, and the media reports it.

The arrests of Andrew Mountbatten-Windsor and Peter Mandelson were a striking exception to this practice. When the police said they had “arrested a man in his sixties from Norfolk” on February 19, newspapers widely reported that it was the former prince. The image of him in the back of a car after questioning featured on nearly every front page the following day.

Days later, Mandelson was arrested at his London home. Again, police said simply they “arrested a 72-year-old man”, and the media confirmed it was the former US ambassador.

The police investigations into both men, on suspicion of misconduct in public office, were prompted by US officials’ release of a tranche of emails from the Epstein files. Both men are suspected to have passed sensitive information to the paedophile financier while serving in official positions. Both deny any wrongdoing.

Why was the media allowed to report their names?

Privacy law in the UK is enshrined in the European convention on human rights. The ECHR bans intrusion into a person’s private life, which means citizens under investigation, or arrested by the police, have “a reasonable expectation of privacy”. This is to protect those who are arrested or investigated but never charged with a criminal offence.

Legally and ethically, journalists shouldn’t breach the privacy of people under investigation. However, the public interest exceptions in the Independent Press Standards Organisation editor’s code and the Ofcom code for broadcasting allow for breaches when reporting on matters of public interest – this includes detecting and exposing crime or wrongdoing, particularly when the suspect in question is someone in a position of power. Your average theft by an unknown civilian doesn’t count.

In the cases of Mountbatten-Windsor and Mandelson, there is clearly a strong public interest. One is a member of the royal family, the other a senior politician. Both held positions of power and influence, and were longtime friends of one of the most notorious convicted sex offenders in history.

In such a case, a media organisation being sued for breach of privacy may have a defence if it can demonstrate there was a strong public interest, and it reported the information because it was deemed to be of high value to society. The ECHR also protects public interest journalism.

Other high profile people named by the media at the point of arrest due to exceptional public interest include BBC newsreader Huw Edwards, who pleaded guilty to possessing indecent images of children. Also named by the media on arrest was presenter Russell Brand. He is currently awaiting trial on sexual offence charges, which he denies.

Once charged with criminal offences, suspects become defendants, appear in court and can be officially named.

The College of Policing has just released new guidelines around police communications with the media. The guidance in relation to naming of suspects at arrest protects their right to privacy.

It says the names of those arrested or suspected of a crime should only be released “in exceptional circumstances, where there is a legitimate policing purpose to do so”, for example when a dangerous suspect is on the run.

How Cliff Richard shaped today’s privacy laws

Prior to 2013, police did release the names of those being investigated, or would at least confirm names to the media if asked. But a change in privacy law came after the police investigation into singer Cliff Richard, which toughened up the legislation.

In 2014, South Yorkshire Police raided Richard’s Berkshire home while he was out of the country. The star was unaware he was being investigated on suspicion of historical sexual assault allegations (dropped in 2016 due to lack of evidence). Richard only discovered the police probe because the raid was broadcast live on BBC News, with helicopter shots and a running commentary.

He successfully sued the BBC for £2 million for breach of privacy, telling a judge that the BBC identifying him had smeared his name and reputation around the world.

This case marked a major shift, establishing that suspects have a “reasonable expectation of privacy” before being charged with a criminal offence.

This was reinforced in the case of Alaedeen Sicri a 26-year-old Libyan arrested by police after the Manchester Arena bombings in 2017. He was later released without charge following the attack, which killed 22 people.

Sicri was not identified by Greater Manchester Police, but MailOnline published his name, images and other details after his arrest. He successfully sued Associated Newspapers Ltd and was awarded £83,000 in damages.

In the 2016 case of ZXC v Bloomberg, a businessman successfully sued Bloomberg for breach of privacy because it reported he was under investigation by a UK law enforcement agency. This was something the financial news organisation discovered by reading a confidential letter sent to him. The judge ordered his identity should not be published and awarded him £25,000 in damages. The ruling was upheld by the Court of Appeal and the Supreme Court.

These cases all demonstrate the delicate balancing exercise between the rights of the media to report on an ongoing police investigation and an individual’s right to privacy.

A democracy needs both privacy and public interest reporting. Privacy is the shield that allows people to lead their lives without unwanted interference. But public interest journalism is the spotlight that prevents the rich and famous from abusing their power and holds them to account.

Polly Rippon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.