Police Misconduct & Breach of Investigation Confidentiality

Article 245, Paragraph 1 of the Code of Criminal Procedure provides that investigations are not to be made public. The rule binds the police, prosecutors and the Investigation Bureau, who may not disclose what they learn in a criminal investigation before trial.

In practice the rule is broken constantly. Whether to show results or to win media attention, investigators leak details of cases that then fill television news, newspapers and the internet. The people involved lose their privacy and reputation, and the case becomes a label they can never remove.

Official oversight exists on paper. The National Police Agency acts on complaints from the public and on daily monitoring of broadcast and print media by its command center and the Criminal Investigation Bureau. But the system has little effect: solving a major case earns an officer a commendation, while a breach of confidentiality brings only a reprimand, so some officers simply ignore the rule. Prosecutors and Investigation Bureau agents are almost never disciplined, and prosecutors have told us privately that some district prosecutors offices let reporters walk in and out of prosecutors’ rooms as they please.

Investigation confidentiality exists to protect the privacy of the people involved and to give real effect to the presumption of innocence. When it breaks down, innocent people become the subject of news stories and are tried by public opinion, and the courts come under heavy pressure. JRF launched its Investigation Confidentiality Project in response.

Cases

Why investigation confidentiality matters

1. It protects people from trial by media

In both the Mama Mouth case and the bungled spy case, the media reported in detail on unverified information leaked by police, prosecutors and investigators. Before either person was convicted, or even brought to trial, they were portrayed as a “murderer” and a “communist spy”, and their reputations were wrecked.

Even after the decision not to prosecute him, Lü Ping-hung was confronted by a passer-by: “Didn’t you kill someone? Why aren’t you in prison?” Kuo Mei-lan, also cleared, could not find work because of how sensitive the coverage had been and had to apply for jobs under another name. Leaks by investigators had lasting effects on both of their lives.

In other high-profile cases too, leaks combined with excessive coverage make it easy for suspects and defendants to be labeled guilty before any conviction. Public pressure can also influence the courts, quietly eroding the presumption of innocence.

2. It keeps leaked misinformation from distorting evidence

This matters all the more as Taiwan moves toward citizen participation in criminal trials. The Innocence Project, a US non-profit that uses DNA evidence to free the wrongly convicted, had helped exonerate 356 people by 2018. Its study of the first 325 DNA exonerations found that eyewitness misidentification played a part in 72 per cent of them.³ Memory is not a video recording that can be replayed unchanged. It is reconstructed each time, and false information received along the way can create false memories.⁴

In the Bali double murder case, police improperly disclosed that the defendant had bought joss paper.⁵ Together with extensive coverage of Lü Ping-hung’s appearance and of an unverified account of how the crime was committed, this led the owner of a joss paper shop to identify Lü, wrongly, as the man who had come in with the defendant. Only further investigation, which established that he had never been to the shop, prevented another miscarriage of justice based on misidentification.

3. It protects innocent family members

In 2018, after a young girl in Changhua died from abuse, police and prosecutors allowed the suspect’s identity to become public during the investigation.⁶ On hearing a false rumor that the suspect had been released on bail, a group of people went to the suspect’s home, smashed it and scattered funeral money, in an attempt at vigilante justice.⁷

The Regulations Governing the Non-Disclosure of Investigations list details of an offense that concern the privacy and reputation of the defendant, the suspect, or their relatives or spouse among the matters that may not be disclosed. In the Changhua case, improper disclosure of the details led members of the public to harass and attack relatives who had nothing to do with the crime, violating their privacy and even endangering their lives. That is the opposite of what the rules are meant to achieve.

4. It preserves the investigation itself

When police or prosecutors solve a major case, they often hold a press conference, laying out seized guns, ammunition and drugs on tables and even bringing suspects who have not been indicted, let alone tried, before the cameras. The events are so elaborate that they are nicknamed “temple festivals”.

These press conferences show off the police’s hard work, but they can throw away an investigative advantage. If seized drugs are shown to the press, the gang behind them may recognize its own packaging, or recognize the suspect from his build or clothing when he is paraded for photographs. That gives others a chance to coordinate their stories and destroy evidence.

Take the “dumbfounded cat” meme that swept the internet a while ago. It began with a cat picture and the word “dumbfounded” printed on drug packets seized by police. Once the image went viral, other members of the same gang could simply destroy any packets bearing it, and the police lost the chance to round up the whole network.

What JRF is doing

1. Taking complaintsJRF continues to accept complaints about breaches of investigation confidentiality by police, prosecutors and the Investigation Bureau. To file one, book an in-person consultation through our complaint service.
2. Watching the TV newsThe National Police Agency monitors the news every day, but its investigations and penalties achieve little. Civic groups will form a working group to watch television news daily, record suspected breaches of investigation confidentiality by investigative agencies, and report them to the authorities at regular intervals.
3. Following the official review reportsUnder the Regulations Governing the Non-Disclosure of Investigations, in force since June 2019, the review panels set up by investigative agencies must publish a review report and the results of investigations and disciplinary action every quarter. Civic groups will follow these reports closely and hold the authorities to account.

Rules and guidelines

• Regulations Governing the Non-Disclosure of InvestigationsCurrent version, in force since 15 June 2019 (in Chinese)
• Directions for Prosecutorial, Police, Investigation and Anti-Corruption Agencies on Handling the News in Criminal InvestigationsIn Chinese
• Directions for Police Agencies on the Use of Body-Worn Cameras on Duty and the Preservation and Management of Audio-Visual RecordsMinistry of the Interior (in Chinese)
• Directions for Police Agencies on the Use of Dashboard Cameras in Police Vehicles and the Preservation and Management of Audio-Visual RecordsMinistry of the Interior (in Chinese)

Notes

1. Police interview on the purpose of body-worn cameras (YouTube, in Chinese)
2. See the two Ministry of the Interior directions under Rules and guidelines above.
3. ETtoday, 7 June 2018 (in Chinese)
4. The News Lens (in Chinese)
5. ETtoday (in Chinese)
6. Liberty Times (in Chinese)
7. Apple Daily, 26 May 2018 (in Chinese)

If you have been harmed by a leak from police, prosecutors or the Investigation Bureau, you can file a complaint with JRF.