A suspect says in a police caution statement that a person we now have good reasons to believe is an entrapper tells him (the suspect) that a certain Sheikh had told him (the entrapper) that he (the Sheikh) did fund the 2016 campaign of President John Mahama and the NDC with $8 million. A media house, then, publishes a copy of the police caution statement with a story which creates the impression that President Mahama and the NDC have committed a crime. As it turns out, we are told that the copy of the police caution statement was not obtained from official police sources.
Some of my friends have sent me messages, wanting to have an idea of the legal issues involved. These are my preliminary thoughts.
Is it Lawful for the Police to Release Docket Information?
I did not find any specific law which bars the police from releasing docket information to the public. This means that the police may release a suspect’s details and other information on a docket to the public where they deem it necessary. However, in deciding whether to release such information, the police must consider at least two categories of factors – reputational factors and process integrity factors.
Reputational factors include those matters that relate to the need to protect the reputation of suspects as well as the reputation of persons who may be mentioned by suspects. Process integrity factors includes the integrity of further investigation as well as the integrity of any ensuing trial. Because of these factors, we may say further that no one is entitled to police docket information as of right. In other words, the constitutional right to information does not cover information on a police docket.
How Police may Release Docket Information
Having decided to release docket information to the public, the police need to further decide how to release such information. This decision is not just about the medium through which the police may release the information, it is also about the form that the publication may take. There are a number of mediums of publication – posting the information on police notice boards or website, to the press (conference, interview or statement), in a gazette, etc.
In respect of form, paraphrasing the information has been the norm. Publication of hard material evidence (such as copies of a caution statement) appears rather unconventional. Be that as it may, one thing is clear – such a publication must be deliberately official. I did not find any legal basis for the police ‘leaking’ docket information or materials to individuals, be they journalists or not.
Media Publication of Unofficially-obtained Docket Information
Journalists may however use the many tools at their disposal to obtain police docket information. Obtaining such information in ways other than through official police publications is not in itself a crime. However, a particular means adopted in obtaining such information may be criminal, for example, stealing it or obtaining it through bribery or corruption. You will notice here that it is the means (rather than the fact) of having access to the information which triggers the crime. This is because the media laws protect what journalists have (not entirely how they got it).
However, the biggest concern that often comes with a journalist or a media house publishing unofficially-obtained (u-o) docket information is not criminal prosecution. It is civil libel. This arises from the reputational category of factors I mentioned earlier – the law protects every person’s reputation perhaps more than it protects a person’s right to information.
Consequences of Media Publication of Docket Information
The beginning point in discussing libel in this context is this: when a media house publishes docket information the source of which is official police publication, such a publication is privileged. And, the media house will have a defence at libel even if the docket information did not make it to trial.
The second point is that libel may not hold if the u-o docket information in question makes it to trial. This is because, information disclosed at the trial of an adult is public information in respect of which media publication may be privileged. Cool. But, how about if the u-o docket information which the media house publishes fails to result in criminal prosecution? This leads us to the third and most intriguing point.
The third point is that the mantra – “innocent until proven guilty” – is not a defence if the u-o docket information which the media publishes does not result in prosecution. In other words, a journalist who publishes crime-suggesting u-o docket information on a person cannot, if the docket information fails to make it to trial, explain away a libel claim simply by saying that the public knows or ought to know that docket information is not a verdict. And, it does not even matter that such information is factually accurate. Yes, it doesn’t. The information may be true, but being true does not mean a crime has been committed as the media story might suggest. And, oh, it does not also matter that the media house published such information with a caveat that the information is a mere allegation.
The reason is pretty much obvious. First, not everyone who got wind of the crime-suggesting but u-o docket information from the media gets to hear that the information did not even make it to trial subsequently. Second, the court of public opinion does not operate exactly by the judicial rules of evidence – the ‘judges’ there will, regardless, continue to assess a person’s reputation in the light of the published docket information somehow.
So, one may be wondering why media houses go all lengths to risk procuring and publishing such police docket information? Well, the answer is simple – media is business. Like any business, prudent media houses do conduct cost-benefit analyses in respect of each publication. If the earnings from the sales of u-o docket information on scandals will substantially outweigh the damages that they may pay at libel, a media house will be more likely to go out with the publication. Well, some media houses too could actually be foolhardy like that – they will publish without regard for the consequences whatsoever .
How about the Police?
If the police had done their job properly and professionally, the docket information would not be in the hands of unauthorised persons. Because of this, the police command may have questions to answer. They will have to answer, primarily, to the public in respect of process integrity factors – how credible are your systems and processes? But they also may have to answer to the individuals whose reputation may be implicated as a result of the unauthorised publication of the docket information.