To Name or Not to Name, that is the Question

For true crime producers, in most cases naming the perpetrator will be a given. They will have been arrested, charged and convicted by a court of law, usually to a lengthy custodial sentence. But what happens when the person is still a suspect and, for whatever reason, there is no conviction on which to hang the allegations against them?

Most obviously, this will give rise to a defamation risk. An allegation that someone has engaged in criminal conduct will no doubt be capable of causing serious harm to their reputation, so should you name them or not? The answer, as so often is the case, is ‘it depends’.

In England and Wales, truth is a complete defence to defamation, although it is important to note that the burden of proof will rest with the defendant. The defence does mean however that naming a suspect, absent a conviction, can be legally sound where there is solid evidence to support the allegations. Primary sources will be vital: documentary evidence (for example photographs, videos and messages) and witnesses who would be prepared to give evidence on the defendant’s behalf in the event of a claim. Ideally, everything should be at least double sourced.

The level at which the allegations are pitched will also be important, depending on the available evidence. Would the defendant be in a position to prove that the suspect committed the crime, on the balance of probabilities? (This is the civil standard of proof employed in defamation cases and is less onerous than the criminal standard of beyond reasonable doubt.) Or rather, would a ‘grounds to suspect’ or ‘grounds to investigate’ meaning be more appropriate? In the absence of a conviction, it is likely that at least where speaking in the producer’s own voice, they will want to use the language of ‘accusations’, ‘allegations’, ‘suspects’ and ‘alleged victims’.

A right of reply will also be essential. This should set out the ‘sting’ of the allegations and give the suspect the opportunity to respond. Not only will this play a role in any public interest defence the producer might wish to advance, it may flush out any potential weaknesses in the story, as well as the suspect’s attitude to its publication. A non-response could indicate that they will be unlikely to engage.

Consideration should also be given as to the reasons why there has been no conviction to date. Was there insufficient evidence? In which case, this will give pause for thought, although note the point above about the civil standard of proof versus the criminal one. Were the alleged victims, for whatever reason, too afraid to come forward? This is something which it will usually be helpful to explore.

Aside from defamation, another key legal consideration will be contempt of court. Are there ‘active’ proceedings against the suspect? (Broadly, proceedings become active on arrest.) If so, the producer will not be able to publish anything which creates a substantial

risk that those proceedings will be seriously prejudiced. In practical terms, this will likely mean waiting until the proceedings are disposed of before being able to report on the case; the producer may end up with that conviction after all. And what happens if there are no active proceedings when the story goes out, but police subsequently make an arrest? This will be very fact specific, but a publication could end up being suspended until the case has concluded.

Weighing up all of the above, while a producer will undoubtedly be reluctant to let the suspect off too lightly, there may be very good reasons for a decision not to name. In that scenario, certain anonymisation will be necessary to ensure that the person is not identifiable. The test is not whether they would be able to identify themselves, but whether they will be identifiable to third parties, including by reference to information elsewhere (jigsaw identification). The risk of not naming can include potentially identifying the wrong person – consider five directors of a company and one of them being accused of sexual harassment – and not then being able to rely on a truth defence.

So, just as Hamlet found, when considering whether to name a suspect in true crime, there will be much to weigh up.

Louise Lambert, Solicitor, May 2025