A debate seems to be emerging around the search of Sir Cliff Richard’s Sunningdale home and the tip-off to the BBC. It is about time that this debate takes place. But it is a pity that the way it arises should be so prejudicial to a person who has not yet even been interviewed by police about a criminal complaint made about him.

The Guardian reports that South Yorkshire Police have formally complained about the BBC’s coverage of the search of Richard’s property.

The force was contacted some weeks ago by a BBC reporter who made it clear he knew of the existence of an investigation. It was clear he [was] in a position to publish it.

The force was reluctant to co-operate but felt that to do otherwise would risk losing any potential evidence, so in the interests of the investigation it was agreed that the reporter would be notified of the date of the house search in return for delaying publication of any of the facts.

Contrary to media reports, this decision was not taken in order to maximise publicity, it was taken to preserve any potential evidence.

South Yorkshire [P]olice considers it disappointing that the BBC was slow to acknowledge that the force was not the source of the leak.

A letter of complaint has been sent to the director-general of the BBC making it clear that the broadcaster appears to have contravened its editorial guidelines.

Additionally, Geoffrey Robertson QC has weighed into the fray in an Independent article. His claim that “orchestrating massive publicity for the raid on his house” seems, in the light of South Yorkshire Police’s complaint, possibly wide of the mark. However, he does make various telling points:-

1. The search was made in broad daylight when the police knew Richard was away from the premises.

2. Police codes provide that “the officer in charge of the search shall first try to communicate with the occupier” before entering the premises, and this aspect of the code was not complied with in this case.

3. The law requires that, for a search warrant to be granted, a justice of the peace should be satisfied that ”there is material on the premises both relevant and of substantial value“ to the investigation of a criminal offence. Robertson wonders how this element of the law can possibly be satisfied for the search of premises in 2014 in relation to an offence which is alleged to have been committed in another part of the country nearly 30 years ago.

4. The warrant should only be issued if it is “not practicable to communicate” with the owner of the premises, and there could be no possible difficulty in finding a way to communicate with Sir Cliff Richard, of all people.

5. Police codes provide that powers of search should “be used fairly, responsibly, with respect for occupiers of premises being searched”. Far from this being the case, the search was conducted in the full glare of media publicity.

6. The police should be required to get search warrants from circuit judges, rather than from non-legally-trained lay justices of the peace.

Now, there are counter-arguments to at least two of Robertson’s points, though at least one of them does not really hold water.

In respect of point 2, paragraph 6.4 of the Police and Criminal Evidence Act 1984 Code B states that communication with the occupier should be attempted ”unless the search premises are unoccupied“, and indeed they were unoccupied. On the other hand, the police will have known that they were unoccupied, and may have even waited until that was the case before initiating the search.

Point 3 above: it is invariable practice that a search is conducted in historical abuse cases, and papers, computers, cameras, disks taken away for analysis. Whether this is a form of fishing for evidence to bolster a case, or a reasonable extension of a police investigation into other areas of inquiry, is a matter of opinion.

Whatever view one takes here, it is arguable that, under the current law, police should have waited until Richard was at the premises, visited him there, arrested him as necessary, and conducted a search under their general powers of search after arrest under Section 32 of the Police and Criminal Evidence Act 1984. Any arrest and search should have taken place discreetly, probably after hours of darkness, and without notice to or discussion with the media, whatever their state of prior knowledge.

But Robertson makes a further claim, about the effect of high-profile searches and prosecutorial delay on a suspect’s life:-

If the outrageous treatment of Paul Gambuccini and Jimmy Tarbuck is any guide, Cliff Richard will remain in a cruel limbo for 18 months or so until the police and the CPS decide whether to charge him. This has been one of the most intolerable features of other high-profile arrests for ”historic” offences, namely the inability of police and prosecutors to deliver Magna Carta’s truly historic promise that justice will not be delayed.

The CPS has taken up to 2 years to tell journalists like Patrick Foster that they will not be prosecuted, after unnecessary dawn raids, and publicity every time they are bailed. This lack of care for their liberty is amoral, because it subjects them to drawn-out psychological cruelty. If the CPS cannot decide whether to prosecute 3 months after receiving the police file, it should not prosecute at all.

Robertson makes two other claims, first that the search clearly broke the privacy provisions of article 8 of the European Convention of Human Rights; and, second, that most European countries have time limits which prevent prosecutions of most sexual offences after a lapse of 10 years. After 25 years, fair trial becomes very difficult, as memories dim, alibi witnesses die and records disappear. We will assess these arguments in later posts.

For the moment though, let’s congratulate Robertson for standing up for the rights of the suspect in historical abuse investigations. Suspects in such cases are human beings too, with human rights under the law. It appears that the criminal justice system in England and Wales has decided that these rights no longer really count for anything when stacked up against their pressing need to be seen to be doing something, anything, to satisfy the public that they are doing all they can to stem the alleged tide of child abuse, which is any event a myth born of a generalised public fear and anxiety.

If we are not yet back in Salem, we are getting pretty close to being there.