Anonymity for all? Feb 2016

What though of the social stigma suffered by those accused without basis? Allegations of sexual abuse are uniquely destructive to reputations whether they have merit or not. There have been a number of high profile cases that illustrate this point. James Tarbuck was unable to work for a year while a claim was considered against him and Ben Sullivan was forced from the Oxford Union never to return. Both men faced allegations that did not lead to a charge. Christine and Neil Hamilton were the subject of intense media scrutiny when Nadine Milroy Sloan falsely claimed that they had raped her. That claim ultimately lead to her imprisonment for three years for perverting the course of justice but not before her victims were denounced. We have an overarching duty to ensure fairness both to those who are accused as well as those who accuse.

Anonymity for suspects has been the subject of long standing debate. The Sexual Offences Act 1976 gave anonymity to defendants. This protection was removed by the enactment of the Criminal Justice Act 1988. The Government has partially acknowledged this issue by granting anonymity to teachers subject to allegations by pupils under S13 Education Act 2011 but it is not enough. This provision protects teachers only up until they are charged and teachers are not the only professionals vulnerable to these claims. Carers, medical practitioners, police officers and many other groups can be affected professionally by a complaint of this kind and the ruination of even one career by an allegation without merit is one too many. Further, all citizens are vulnerable to an allegation that leaves a stain upon their character even if investigated and found to be without basis.

The justification for naming suspects is that it is necessary to encourage other witnesses to come forward. It may be true that it sometimes has that effect but it is a case of using a sledgehammer to crack a nut. Why is it essential to broadcast the name of a suspect for other witnesses to complain? Often the same end could be achieved by publicising a description of the offence. In fact, it was the description of the modus operandi of the black taxi rapist that attracted similar fact complainants rather than the publication of the identity of John Warboys.

A balance must be struck between the welfare of one group and the welfare of another. A person wrongly accused, wrongly charged, wrongly tried and, in particular, wrongly remanded in custody would still have suffered a significant ordeal but if he were anonymous he would be able to return to normal life without having to contend with public opprobrium.

The case of Jimmy Savile does demonstrate that there are complainants who do not come forward fearing that they will be disbelieved. The publicity given to the allegations against him did, indeed, attract other complaints. Complainants may have responded to a description of the facts, such as sexual offences alleged against a popular children’s entertainer within the BBC buildings. It might have been that only releasing his name was sufficient. The case of Jimmy Savile was unusual because of his heroic image. Since it was unusual it should not be used as a template for every case.

There have been high profile acquittals too. The cases of Michael LeVell and William Roache are examples. Jim Davidson was named and never even charged. Sir Cliff Richard was questioned by police, kept on police bail for over a year and had to endure a media escort while the police searched his house and still he faces no charges. One can only imagine that the humiliation suffered by these people was greater because the press named them.

Further, the justification for naming suspects seems to be founded upon the premise that a larger volume of complainants leads to more reliable evidence. Sometimes it does not. Anxiety was expressed after the acquittal of Nigel Evans, MP, that it was the practice of CPS to bolster a weak case by bringing a large number of claims in the hope that they support each other. Of course, the prosecution of one weak case does not evidence an overall policy. Nevertheless, we should scrutinise the probative value of supportive allegations. The fact that several people make similar claims against one person does not mean that they are true especially when a subsequent accuser can read about the allegation of the original accuser and the name of the suspect in the media. How can contamination ever be ruled out in these circumstances? How much stronger would similar fact evidence be if the suspect were anonymous and subsequent witnesses were only likely to have named the same person if there were merit to their claims? We should be alive to the fact that one effect of naming a suspect may be to encourage opportunistic and malicious claims as well as truthful ones.

There will need scope to lift anonymity before conviction in some cases but there must be a more proportionate means of achieving this than naming every suspect to be arrested. The presumption could be in favour of anonymity unless and until conviction. The Crown could be provided with the ability to apply to a Judge to lift the protection if there were reasonable grounds to suspect there are further victims, if they can show that the investigation is impeded by anonymity or otherwise can justify it in the public interest. There will need to be safeguards to prevent abuse of this power. When investigating complaints within a family the police can, in most circumstances, readily trace other potential victims without the need for the help of the media. The defence could have the right to oppose an application made upon speculative or spurious grounds. The media could encourage other witnesses by printing details of the offences. Parliament has long granted anonymity for youths but there is power to publish the identity of a youth where it is in the public interest. The concept therefore of giving the courts discretion in respect of a suspect accused of rape is not alien to English law.

Justice must be done openly in a civilised society but there are already exceptions to this. Granting anonymity for those accused of rape may give the appearance of singling out sexual offences and, on the face of it, imply that these allegations are less worthy of belief than others. Set against that is the argument that few, if any allegations, are capable of causing such damage to reputations. A man cannot recover from an allegation of rape as he can from an allegation of burglary. Further, the greater imbalance lies in naming a defendant who has yet to be shown to have done anything unlawful while his accuser, unless charged with perverting the course of justice, has the protection of lifelong anonymity.