Anonymity and Sexual Offences

Whether or not those accused of rape or other sexual offences should be afforded anonymity has been a prolific topic in the national press recently. It is well recognised in the UK that complainants in sex cases are afforded anonymity from the time of their allegation throughout the rest of their lives. Why then do we not afford those accused of these crimes the same right in order to protect the potentially innocent defendant?

This article will examine the issue and ultimately argue that there is a basis for defendant anonymity up to a point; until the person accused has been charged. First however, a brief history of anonymity in sex cases:

Currently then, those accused of sexual offences do not have any specific entitlement to anonymity. It is worth noting that the anonymity afforded to complainants is not absolute; it can be lifted by the court. Further, it is not anonymity from the person they are accusing. The complainant can be named in court – the anonymity mechanism works by making it a criminal offence to reveal the complainant’s identity in the media.

Anonymity and the presumption of innocence

A parliamentary committee[1] considered the question of anonymity for complainants and defendants prior to the 1976 Act and the rationale is as valid then as it is now:

“. . . . public knowledge of the indignity which [the complainant] has suffered in being raped may be extremely distressing and even positively harmful, and the risk of such public knowledge can operate as a severe deterrent to bringing proceedings. . . . . . The balance of argument seems to us to be in favour of anonymity for the complainant other than in quite exceptional circumstances.”

“While fully appreciating that rape complaints may be unfounded, indeed that the complainant may be malicious or a false witness, we think that the greater public interest lies in not having publicity for the complainant. Nor is it generally the case that the humiliation is anything like as severe in other criminal trials: a reprehensible feature of trials of rape . . . .  is that the complainant’s prior sexual history . . . . . . may be brought out in the trial in a way which is rarely so in other criminal trials.”

If it is recognised that there is a particular humiliation involved why should this reasoning not apply to both the complainant and defendant? As the Nigel Evans case showed us, the presumption of innocence can effectively be overturned by adverse publicity. There is a balance to be found within the sphere of sexual offences between protecting the complainant and protecting the defendant.

That balance, in my opinion, is tipped against affording anonymity to defendants until they are convicted. The following are most persuasive reasons why:

  • First and foremost, justice should be open with trials held in public; our criminal justice system is premised on transparency. The principle of ‘open justice’ is and should be subject to as few exceptions as possible. There is also a broader point here. Part of the deterrent effect of the criminal law is that if you commit a crime, you can be charged and will have to stand public trial. People will know what you are accused of. Given the added stigma associated with being accused of a sex crime, it is important that anyone who considers committing one knows they face being named publicly.
  • Second, by naming those accused, it encourages others who may have been the victim of a similar offence to come forward. This is a vital advantage that is gained by only affording anonymity to complainants and evidenced by the cases of Rolf Harris and Stuart Hall.
  • Third, as Ruth Hall (no relation to Stuart Hall) points out, giving anonymity to those accused would suggest, implicitly, that there was a presumption of doubt about the credibility of any allegations. It is accepted, I think, that coming forward, reporting a sex crime and enduring a trial are particularly difficult things to do. We should avoid any policy decision that directly, or indirectly, discourages people to come forward.

Finally there is the argument that we should not set sex crimes apart from other serious crimes. We do not afford anonymity to those accused murder or GBH for example, and so should not afford it for sex crimes. This does not carry much weight, in my opinion. It is the basis of complainant anonymity that sex crimes are different to other serious crimes in the eyes of our society. If we accept that, then surely sex crimes are the only arena in which we could justify defendant anonymity.

In favour of anonymity for defendants are the following arguments:

  • First, there is the obvious stigma that those accused face upon allegation, that will never go away. As parliament seemed to accept in the quote above, sex crimes do occupy a different, more taboo place in the public conscience even when compared to other serious crimes. If an accused is never charged, or even if they are eventually acquitted, there will still be no vindication. They will have been tarred with the brush of the allegation alone. This would seem irreconcilable with the presumption of innocence.
  • Second, there should be equality before the law; if it is justified to allow complainant anonymity then it should be a level playing field. Everyone should be treated equally before the law and anonymity for both parties is simply the practical manifestation of that principle. It avoids the defendant being placed at a disadvantage. This leads to the third argument that there is an increased risk of false allegations being made if only one side has anonymity.

It would seem to be a common misconception that only giving anonymity to complainants encourages, or increases the risk of, false allegations. To avoid the consequences highlighted above, it is therefore only fair that both parties are afforded anonymity. This is a superficial argument. Page 6 of this study by the CPS gives some figures for a comparison of rape prosecutions versus prosecutions for perverting the course of justice. Over the period covered there were 5,651 prosecutions for rape, but only 35 for making false allegations of rape. It is simply not true to say that false allegations are a serious problem that needs to be actively avoided.

The answer is to afford anonymity to those accused until they are actually charged with an offence. This would act as a safeguard for those accused as well as preserving the advantage of publicity to ensure other complainants will come forward.

Some would argue that this will hinder the investigation of allegations. It does not. It provides an essential control on the quality of the prosecution’s evidence. Each allegation should be considered in its own right and on its own merits as to whether or not it can sustain a criminal trial. It is not fair that the police use weaker allegations to bolster others; basing a case on several allegations where the evidence is weak, rather than on a few more concrete ones. An example of this happening is again the Nigel Evans case, where in some instances even the witnesses for the prosecution did not believe that what had happened amounted to a sexual assault.

Before someone is charged there is simply an allegation, which alone is enough to savage reputations. Ben Sullivan, president of the Oxford Student Union, is the prime example. He was never charged and the allegation was not followed though. Yet it resulted in his personal life being splashed across the media and prominent speakers cancelling their appearances at Union events.

In order to charge someone there is a consideration of the evidence and a determination that there is a reasonable prospect of conviction. This is not a perfect system as the decision to charge is on the balance of probabilities rather than the full criminal standard, but nevertheless it is an important check. I suggest that those accused are given anonymity until that happens, after which time it is right that the case proceeds in public, for all the reasons set out above.

[1] Home Office, Report of the Advisory Group on the Law of Rape, Cmnd 6352, December 1975, p 27, para 153-157

12 October 2014

Christopher Pask

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