Police can publish an accused’s photo but no mugshots

The content originally appeared on: Trinidad and Tobago Newsday

Justice Frank Seepersad –

THE POLICE SERVICE can publish images, names and addresses of an accused where the law permits it.

However, the TTPS cannot disseminate the police booking photographs or mugshots. This was the ruling of Justice Frank Seepersad on February 14, as he upheld only one aspect of a police officer’s lawsuit against the State.

Acting Cpl Narindra Beharry, who saw his mugshot on several media sites and complained that the dissemination of his mugshot violated his right to privacy, sued the State for the alleged breaches of his constitutional rights.

The right to privacy aspect of Beharry’s claim was rejected by the judge. He did agree the police acted inappropriately by publishing the officer’s mugshot, although he did not award him any compensation.

In his ruling, Seepersad said, “This society is inundated with criminal activity and most citizens live in fear. With every passing year, the situation worsens.

“There seems to be no effective plan to abate the lawlessness and members of the public feel helpless. Against this backdrop of societal dysfunction, citizens and residents should be made aware of the persons who are charged and brought before the court,” he said, as he held that the police can publish photographs of an accused person.

“The free and unfettered dissemination of information within the parameters of the law is one of the foundational pillars upon which a democracy is premised.

“Once persons are charged, save where the statute prohibits, the media and the TTPS cannot be condemned if they elect to publish the image of accused persons and it is ludicrous to contend that any such publication infringes the right to privacy or that same is defamatory.”

He said the police had a duty to keep the public informed.

“The claimant is a police officer and having found himself in a situation where a criminal charge had to be instituted against him, he cannot now claim that he has a right to privacy with the dissemination of his image for the said charge.”

He said the police could use photographs of an accused already in the public domain.

For officers, the police can use photos on their files such as those when officers applied for the job, those available on the internet or updated photos taken for employment records.

“The court is therefore resolute in its view that it was in the public’s interest to publish an image of the claimant but finds that an unauthorised or improper photograph was used…”

However, he said the legislation limited the use of mugshots for identification purposes only.

“The TTPS has no legislative authority nor does it have the capacity to interpret, alter or amend legislation.”

He was referring to the police’s media policy explained by ASP Joanne Archie, manager of the police service’s corporate communications unit, which was updated in 2021 and approved in January 2022. It is reviewed every two years, with the next review carded for January 2024.

Seepersad said the implementation of the policy to use mugshots to identify an accused to the public was flawed.

“An internal TTPS ‘media policy’ cannot be used to circumvent the limitations imposed under section 50 of the Act. Mugshots carry a sinister connotation. The unique way in which these shots are taken communicates that the person whose image has been captured has been charged with a criminal offence and it would be patently unfair and prejudicial for an individual who has been acquitted to have his mugshot available for public access, in perpetuity.”

In declaring that the police could publish the photograph of an accused, Seepersad said, “The public at large, except where a matter is to be conducted in camera, has the right to attend a court hearing and to view the proceedings. The judicial system itself does not shield members of the public from knowing the identity of accused persons.”

He said an individual’s rights and those of the general interest of the community must be balanced.

“There can be no merit in the assertion that the right to privacy prohibits the dissemination of an accused’s image.

“Although the presumption of innocence is the golden thread that is interwoven into the fabric of the criminal justice system, the fact that a person is charged, cannot be ignored…

“In a society plagued by crime, the rights of those who are charged cannot trump the rights of those who elect to obey the law and law-abiding citizens should be provided with any information which enables them to institute the necessary adjustments and engage the requisite precautions to protect their property and person.”

He added, “Unless a statute provides otherwise, there can be no legitimate prohibition against the publication of the photograph of any accused.”

Seepersad said photographs obtained from social media could be published by the media and the police but not mugshots.

In January 2023, Beharry was charged with assaulting a civilian at the Valencia police post on July 3, 2022.

Officers of the Professional Standards Bureau took his police booking photograph after he was charged, which he acknowledged, was the standard procedure under the Police Service Act, which permits the taking of a photograph of someone charged for identification purposes.

Beharry said after he appeared in court virtually, he was shocked to see his mugshot in circulation in the print, television and social media as well as on the police service’s Beyond the Tape television programme.

Beharry’s photograph accompanied a media release from the police service’s communications department on January 13, 2023.

He says his mugshot is still in circulation on the internet.

In 2021, Justice Margaret Mohammed ordered the police commissioner to destroy mugshots and physical measurement records of persons acquitted of criminal offences who have no pending matters before the courts.

In February 2023, Justice Carol Gobin also ruled on a lawsuit by a local golfer involving the police using his mugshot, which accompanied a police press release when he was charged.

Since the ruling by both judges, the police service no longer provides photographs with their media releases when someone is charged with an offence.

In October 2023, a High Court judge also ordered compensation for another police officer whose mugshot was disseminated by the police to media houses and the public after he was charged with misbehaviour in public office.

Attorneys Lee Merry and Kelston Pope represented Beharry. Janique Mitchell represented the State.