The case against anonymity in sex-crime cases

It is crucial that justice is done and seen to be done.

Luke Gittos

Topics Politics UK

Paul Gambaccini and Cliff Richard renewed their calls this week for those accused, but not charged, with sexual offences to keep their anonymity. Richard called for a ‘rebalancing of the legal system’. They have launched a parliamentary petition, which reached 10,000 signatures by Monday afternoon. Both Richard and Gambaccini were subjects of high-level investigations into historical sex abuse, but in the end neither had charges brought against them.

I have sympathy with Gambaccini and Richard. There is a very clear problem here. Complainants in sexual-offence cases have been afforded lifelong anonymity in certain cases, thanks to Section 1 of the Sexual Offences (Amendment) Act 1992. It is not right that a complainant can make an allegation under the protection of lifelong secrecy, while the defendant is submitted to a lengthy investigation in the full glare of the media. But there are good reasons for why anonymity is not the answer – for both parties.

Above all, it undermines open justice. Justice ought to be done and seen to be done, at every stage. Closing off any stage of a criminal case to public scrutiny creates a real risk for injustice. And if you allow greater anonymity into one part of the legal system it can be introduced elsewhere. Lawyers will say that open justice is always a qualified principle. We already allow for ‘special measures’ allowing witnesses in certain cases to be anonymised. There are a number of areas of our courts where anonymity is relatively routine, such as in the family courts. But this doesn’t mean that extending anonymity further is a good thing.

There is also no reason why the rights of rape defendants should be protected to a greater extent than any other defendant facing serious criminal allegations. Perhaps these cases do carry more ‘stigma’ for defendants, but we are at risk here of undermining the very thing we seek to protect: the presumption of innocence. The suggestion that extending anonymity up until charge suggests that a defendant’s rights should change once they are charged. There should be no difference between a defendant who has been charged and one who has not been. By drawing a line at the stage at which a defendant is charged with a particular offence, campaigners are actually undermining the idea that all defendants should be presumed innocent right up until a guilty verdict.

There are practical issues too. The fear of breaching any anonymity requirement will make the police less able to investigate allegations. There is an obvious risk that the Crown Prosecution Service will simply charge more people who are accused of sexual offences, even when the cases are weak, in the hope they will be supported by further corroborating evidence as a result of the defendant being named. The CPS has already come under fire for failing to charge enough defendants in these cases. Anonymity until charge would drive up the number of defendants charged on weak evidence.

Cliff Richard is right that the legal system needs rebalancing. It is not right to extend protections to complainants that are not extended to defendants. But the progressive solution to this issue would not be to extend anonymity to defendants in sex-offence cases, but to end it entirely.

Anonymity for complainants is justified on the basis that sexual crimes are apparently different to other crimes. They carry with them a certain stigma and shame, which means they should be treated differently. So goes the argument. No doubt that is true. But surely the answer is for society to recognise that there is no stigma or shame about being a complainant in these cases. Rape and sexual violence is not about sex. It is about force and power. Reporting an allegation like this should be no more shameful than reporting an assault or a robbery.

Of course anonymity lends some comfort to victims of sexual violence. But going to court is inevitably traumatic, whether you are anonymised or not. We should do everything we can to support women to ensure they get justice. But we should bring these allegations out into the open, rather than hiding them away.

By ending the stigma around reporting and prosecuting sexual violence, we could achieve a real ‘rebalancing’ of the system – one that affords equal protection to both the accuser and the accused.

Luke Gittos is a spiked columnist. His new book, Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, is published by Zero Books. Order it here.

Picture by: Getty.

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25th July 2019 at 6:51 pm

Until charged?

Okay, so they get charged, the name becomes public, it goes to trial and turns out they’re innocent.

What then?

Esp. since a large majority of people in the UK firmly believe in “no smoke without fire.”

Tracy Hodgkins

8th July 2019 at 1:14 pm

I do wish the media, in all its various forms, would drop the idea that giving those accused of sexual offences anonymity until charge ‘would undermine open justice’. The media isn’t bothered about open or any other sort of justice. It is merely bothered with their self perceived right to report on matters prematurely for the sake of salacious headlines that sell copies and their right to drag the names and reputations of men, because let’s face it, it is so often men who are accused, through the mud. The media is peddling a lie that in reporting before charge they are scrutinising the police. They are not. They are merely scrutinising the lives of men for the sake of selling stories and destroying lives in the process. Sir Cliff Richard’s case is a good example. The police didn’t name him and didn’t plan to. The BBC took it upon itself to play judge, jury and executioner and sent their vile coverage around the world in seconds, nearly destroying a man who, at that stage, had not even been questioned by the police, let alone arrested or charged with any offence. Now he has to live for the rest of his life with that vile slur against his name, despite never being arrested or charged.

Some countries have anonymity until conviction and they still manage to deal with offenders, so I fail to see what the issue is in this country. Oh, sorry, I do, it’s the media again, thinking their ‘right’ to free speech is more important than individuals right to privacy. It’s just such a shame that whilst pushing their rights, they fail to see that with rights come responsibility. If the media, and indeed some of the wider public, understood the principle of innocent until proven guilty there would be no issue with reporting names in such matters, but they don’t, so some controls need to be introduced.

The media is carrying on as if Sir Cliff Richard et al are asking for a blanket ban on naming, but that isn’t the case. All they are asking for is anonymity unless or until charge. Given that from charge it can take two years for a case to come to trial, you would think that would be sufficient time for any further complainants to come forward, if they exist. What has to stop is the ability to put names out before arrest, before charge, before an accused is even questioned in some cases. Naming too early damages reputations and lives and could even risk convictions being quashed in cases where there is guilt.

What should happen is that there should be anonymity until charge and any decision to name before charge, i.e. where there is a genuine public interest, immediate risk to life for example, should be made by a judge, not a journalist. The police should also move from automatically believing complainants to listening to them and seeking evidence to corroborate what they say. The media should change its language, stop referring to complainants as ‘victims’ until there has been a conviction. People proved to have made false allegations should be punished appropriately and they should lose their lifelong anonymity. It isn’t right that at present one side gets to sit back in total and lifelong anonymity, while the other can have his life destroyed on the whim of a journalist.

Like it or not, there is no greater slur on the name of any man than to accuse him of sexual offences, particularly offences against children. For some people there is ‘no smoke without fire’ and if something is said on the news or in the paper, it must be true. Being accused of any sexual crime is worse than accusing someone of murder or bank robbery etc. That slur needs to be removed by giving these people anonymity until an appropriate time. Until charge seems appropriate to me.

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