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The Westminster sex scandal: It’s time for defendant anonymity to be reinstated

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Death of Carl Sargeant a wake-up call?

The courts currently have the power, in all criminal cases, to restrict the publicity of a case where that publicity risks the administration of justice. But until the case reaches court, the defendant’s identity and reputation — and those of his or her family and friends — all lie at the mercy of public opinion.

‘Innocent until proven guilty’ has been an age-old adage of our criminal law and our politicians, sex pests or nay, are not being afforded this ancient right.

Anonymity for rape complainants and defendants was introduced in 1975 but in 1988, at the behest of a Conservative government led by Margaret Thatcher, anonymity for defendants was withdrawn. This remains the case today.

We are now at a stage where trial by media, where press coverage fuels public opinion, often begins before the suspect has even been charged. Unlike murder or theft, the legal definitions of sexual offences can be harder to apply to the facts of any given case and as a consequence they are open to misapplication. In Cliff Richard’s case, this lasted for two years, before the police decided not to charge him. Kevin Spacey, it seems, may suffer a similar fate.

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In and among the recent Westminster sex scandal, which saw Defence Secretary Michael Fallon hand in his resignation, some have complained the mood of today could be fuelling baseless allegations. This train of thought is likely to be exacerbated by the death of Carl Sargeant, the Welsh politician found dead not long after being suspended from the Labour Party over allegations.

While Sargeant’s death should not deter people from coming forward with allegations, it may have the effect of doing so if we do not change the law on anonymity of suspects of sexual offences.

When Leon Brittan, the Home Secretary of Thatcher’s government, called for reform of MI5 in the 1980s, allegations surfaced that he was linked to a paedophile ring in Westminster.

It was not until Private Eye suggested that the unsavoury allegations might be linked to his shake up of MI5 did they begin to die away. Brittan died in 2015 aged 75, just months after the allegations resurfaced in parliament. They were never substantiated and only this year the Metropolitan Police agreed to pay about £50,000 to his wife in compensation.

It’s not known whether or not the security services were behind the allegations, and/or if the allegations caused Brittan’s early death. But, rather like Sargeant’s story, it does show the devastating effect these allegations can have on a person, true or not.

There are of course arguments against the reintroduction of defendant anonymity.

When the question of defendant anonymity in rape cases was raised in the House of Commons in 1988 there was concern that if a man accused of rape could be afforded anonymity then what would be the argument against providing anonymity to defendants of other crimes such as murder or theft. If this wider anonymity was introduced, it would offend the old principle of open justice, which ensures the integrity of the justice system by allowing public access to the judicial process. In turn, public scrutiny of the process would be diminished, leading public confidence in it to become dented.

Public confidence in our judicial system does not, however, depend solely on the principle of open justice. The equally important principle of fair trial, for example, also needs to be taken into consideration in order to ensure public confidence in our judicial system.

In an age of social media, when ‘fake news’ has established itself as a defining phenomenon and ‘post-truth’ has like a cuckoo found a home in the English Dictionary, we should counter media excitement with the age-old precept of innocent until proven guilty. Technology has redefined our age and we should adapt the legal principle of open justice accordingly. Reconsider defendant anonymity before cases reach court.

William Temple is a graduate of Warwick University and City University of London. He is a litigation paralegal.

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23 Comments

Not Amused

Agree.

It is also time to have a competent Attorney General who stops the press conducting trial by media and (thus frustratingly) making convictions less likely.

Trumpenkrieg

We should go further and institute a regulatory system of licenses for journalists akin to the ones which apply to doctors, accountants and other professionals.

These people literally have the power to destroy lives by what they publish yet there is zero vetting of character. They simply flop off the faculty benches and into junior positions where the only quality control is senior editors who are as unvetted and unaccountable as they are.

The repercussions to biased coverage, fake news and misreporting will be treated with deprivation of the ability to practice journalism plus a sliding scale of civil damages and criminal sanction up to and including prison (especially for coverage that goes so against the fudamental interests of the state as to amount to treason – see The Guardian coverage of Brexit).

Anonymous

Agreed. Social media means the law needs updating. Years ago there would be little reporting of the alleged offense and trial until after conviction and what reporting there was wouldn’t be instantly available from anywhere in the world forevermore. It’s now impossible for those acquitted to move on with their lives.

Anonymous

And fresh from chairing another employment tribunal is Jones Day partner with his comments on this…….

Anonymous

Yes but is Doxbridge a thing?

Anonymous

It’s a Bing thing.

Anonymous

There’s a clear reason for allowing complainants in sex crimes have anonymity — without this anonymity fewer such offences are reported. In other words anonymity is for the public good rather than the individual complainant’s good.

If the problem for defendants is stigma even before trial or after acquittal, I don’t see why sex crimes should be treated any differently to any other crime. Lots of crimes carry a stigma: would you instruct a solicitor if the first hit on google was an allegation, subsequently rejected by a jury, that they have misused client money? Would you give your house keys to a builder who you learned had been acquitted of a gruesome murder? Accusations of any serious (or even non-serious) crime can have a devastating effect on someone’s reputation.

I think that if we are talking about protecting defendants from stigma the conversation needs to be about all serious crimes. If you don’t think people accused of murder should be anonymous, there’s no reason someone accused of rape should be. Or perhaps anonymity is appropriate for all those accused of a crime. But let’s not pretend that sex offences are any different or more dangerous to reputation than other serious offences.

Not Amused

It is much easier to make a false allegation of rape than it is to make a false allegation of murder.

Anonymous

So what, you’re saying in the case of murder there’s no smoke without fire? Surely that’s the attitude we’re trying to avoid… Innocent until proved guilty applies equally to all crimes, so the question of how ‘easy’ or otherwise it is to accuse someone shouldn’t affect how we treat those accused.

Not Amused

No. I am quite clearly not saying that.

What we know is that there are false allegations of rape. That false allegations of rape cause huge negative impacts upon the alleged perpetrators. False allegations are easy to make.

Ergo we should protect the accused, when normally we do not protect the accused. The same logic cannot apply to murder because it is terribly hard to fake a corpse.

The legitimate counter argument is that we shouldn’t give anonymity because media attention causes others to come forward. I have some sympathy with that argument. But the solution is to encourage victims to come forward in another way. A society can encourage genuine victims to report AND protect innocent people from being falsely accused if it puts its mind to doing so.

Anonymous

I don’t follow your reasoning I’m afraid. Why is someone who is falsely accused of rape more in need of being protected than someone falsely accused of murder? Your argument that it is easier to make false allegations of rape does seem to amount to saying that someone who is accused of murder is more likely to be guilty than someone who is accused of rape. I have no idea whether or not this is correct but it doesn’t affect the fact that we must treat everyone as innocent.

Juan Carr QC

Your capacity for linguistic reasoning is shockingly low. Perhaps you should get back to your helper. What is being said is quite simple. There is a greater need to protect persons accused of sex crimes because it is far easier to make a fake rape claim than any other crime. The possibility of this warrants additional protection to ensure that the integrity of our legal system is maintained and is therefore not reduced to a channel for vexatious claimants who realise how easy it is to fool gullible idiots in order to forward their cynical agenda. It is childishly naive to take every complainants word at first value. The prevalence such naivety is a threat to the notion of innocence until proven guilty. A notion which is crucial to ensuring a fair trial.

#tooeasytoaccuse

Not only is it inherently easier to make a false claim of a sexual offence, but as present events show, it seems socially acceptable, even virtuous to do so. I am not aware of an accusation of murder having been made against someone on social media. In many Continental countries, those accused of any crime can only be reported on a “Juan C” etc.

Anonymous

Problem is, events of recent months have shown that publicity around this kind of crime encourages more victims to come forward where they would not otherwise. For decades Weinstein/Spacey/Cosby et al got away with abusive behaviour because individual victims felt powerless to accuse them. Once multiple complainants’ stories surfaced in the press, victims felt able to come forward with similar stories. Many of the complainants explicitly cited the press coverage of their abuser as the reason for them coming forward. So if defendant anonymity were introduced it is likely there would be fewer complaints made — not a conclusive argument against anonymity but something to be taken into account.

Juan Carr QC

You assume that all of these so called accusations are true. Even though none have been proven in court or even merited a formal prosecution. Be honest do you still believe in Santa, or the tooth fairy. I feel compelled to ask as from reading your post you seem like stupidly gullible fool.

Anonymous

There is some merit in your argument because people are social creatures and often feel more comfortable in a group. But there is also a thought to be given to the fact that, as Juan said, not all of the allegations have been proven true and it might just be a trend for some publicity for certain ‘wannabes’ or ‘hasbeens’. The difficulty we have is the trial by media, that is the real issue. It has already been decided that Kevin Spacey (for example) is guilty even though none of the investigations have been concluded.

(I do not refer to Weinstein because he has as good as admitted the allegations against him so it is something else entirely)

Anonymous

Why does stigma attach to victims of sex crimes, proven or alleged? Are we as a society saying that being a victim of such a crime is something to be ashamed of? Automatic anonymity doesn’t apply to victims of other crimes.

If yes, then we should rethink our values, urgently.

If no, the only reason for victim anonymity can be privacy, right or wrong. Which is fair enough. In which case the argument for privacy for those accused of sex crimes – not those convicted – seems equally strong.

Anonymous

The issue is one of media coverage and the conclusions drawn from that by the public.

Take the Spacey stories. There has not yet been a trial and conviction proving guilt, yet his career is over. There is no coming back from that even if acquitted.

Maybe the balanced approach is to place restrictions on media coverage until someone is formally charged. That will, in my view, not prevent other victims coming forward. If anything, it may encourage it more as they will know criminal proceedings are pending.

teejay1

I’m not a legal expert by any means, but there must be a change in the law with regards to allegations of sex offences. The case of Sir Cliff Richard is cited in the article. That man endured his home being raided on live TV when he was out of the country. He had not been questioned by the police, was completely unaware of what he was accused of and the police had not bothered to check the detail of the allegation they based their raid on to see if it stood up before they colluded with the BBC to televise the raid live, thereby sending the story around the world in the space of an hour. Sir Cliff Richard was never arrested or charged with any offence after over 22 months of investigation, but the whole world knew he was being investigated, and following the televised raid one baseless allegation that was proven to be false became further baseless allegations, one from a blackmailer, one from a convicted sex offender, and others from known fantasists, all because Sir Cliff’s name had been put out there. Now, without ever having been arrested or charged, he will never be entirely free of the ‘no smoke without fire’ slurs of people who know nothing about him or the case. Forgive me, but I don’t think that’s fair.

Now look at the situation in Westminster and the various other high profile people who have recently been accused. I don’t recall any arrests being made, but names are being thrown around like confetti. How are any of these people going to get due legal process if they end up in court, because public opinion has already stated their guilt?

It’s not just celebrities and politicians either. If Mr. Average in the street is accused of a sex offence he could quite easily find himself named in local or even national papers before conviction and his name could quite legally be blasted around the internet, leading to him losing employment and destroying his relationships, while the person who accuses him can walk away and get on with his or her life in anonymity.

It’s really quite simple. No one accused of a sex offence should be named unless or until they are charged with an offence. I would personally prefer no names until conviction, but charge would do. Whatever way you look at it, allegations of sex offences are more damaging than allegations of any other crime, especially allegations of offences against minors.

Under current guidelines the police are told to be believe all allegations of sex offences put to them. That is not to say they are told to listen. They are told to believe. The CPS also trots out the line of ‘no further action due to insufficient evidence’ when cases are dropped. They don’t state innocence. Given that the police can’t use their judgement when it comes to allegations of sex offences and go where the evidence takes them, as they can with allegations of other crimes, and the CPS doesn’t state innocence, thereby slurring people who have been accused forever, irrespective of whether or not they are innocent, it seems to me that the system must be made to be fair, which it currently is not. No one deserves to have their reputation destroyed without some proof of their guilt.

Anonymous

I am surprised there has been no consideration in these comments of the potential balance of power between the perpetrator of a sexual crime and the victim. In the possible scenario that an established honourable member were to prey on a young member of staff in the corridors of power of Westminster, wouldn’t the young staffer be taking on quite a formidable opponent in court if she were to decide to take legal action and she had to do so in private? Especially given that such a man’s job is to handle the laws of the land and to be eloquent at presenting himself and his case either at the dispatch box or from the back benches. Doesn’t it help matters, especially in Westminster, for the victim to have transparency on her side?

Anonymous

It’s also a problem of gender because while women often get anonymity, this right isn’t often given to men. Remember the Waterloo case when the female QC was allowed anonymity while the man wasn’t even though BOTH of them committed the crime?

Latvka Da Blitz

Kuvar!
Some crazy people here Doc

Ciaran Goggins

Rape is the easiest serious crime about which one may lie. With false allegations running at 33% (HMIC stats, Lincolnshire, 2016) anonymity must be returned. The current situation is contrary to ECHR legislation, perhaps Ched Evans and/or Clayton McDonald could defeat the UK at Strasbourg over this?

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