Should there be anonymity for rape defendants?

Today it is announced that Stuart Hall has pleaded guilty.  Last week Rolf Harris was arrested, yesterday Bill Roache,  and soon  other famous old men will be feeling Knacker’s hand on their collars to the evident delight of the press and sleb websites.

And at the weekend we learnt that Operation Yew Tree investigators have charged the Svengali of spin himself,  Max Clifford, with historic offences of indecent assault against teenage girls. The country’s most famous PR consultant was quick to stand outside his front gates to protest his innocence to the cameras, and some may see it as grimly appropriate that the once feared maestro of the media – the nemesis of various “sex fiends” over the years – is now exposing himself to trial by media as well as trial by jury. But we can hardly blame him for doing so. He has been accused of crimes that will, if proved, blacken his name for the rest of his life. Should he be cleared by a jury nobody will be better placed to generate sympathetic press coverage, but such is the power of even a false allegation that even he may struggle to restore his reputation.

And sometimes the mere allegation of a sexual offence can lead to far greater tragedy than even the loss of a good name.

Last week Tony Danby, Tony O’Toole and Emma Hall, were sentenced to life imprisonment for the murder of Luke Harwood. Almost exactly a year ago today the mutilated body of the eighteen year old, who weighed just seven stone, had been found under a mattress beside a stream in East London. Danby had boasted that he stamped on his head until it “went like a marshmallow.” Their motive was their belief that Luke had committed a rape, despite a police investigation which had shown that the accusations were completely false.

Luke did not die because of press publicity, but his murder two years after he had been exonerated, shows the appalling consequences that false sexual allegations can have on their victims. It also demonstrates that the stigma attaching to those accused of such offences cannot easily be washed away by a police investigation or a court-room acquittal. Sometimes the strain is so great that, as in at least one recent case, the accused man had committed suicide before his accuser was later shown to be a serial liar

For these reasons there are powerful arguments for saying that those so accused should remain anonymous unless and until they have been convicted, as was, in fact the law between 1976 and 1988.

The restoration of that position had been a long-standing Liberal Democrat policy and even formed part of the coalition agreement; but it was no sooner made than it was abandoned in one of the Government’s earliest U-turns. A half-hearted suggestion that there should instead be a voluntary agreement to maintain anonymity seems to have fizzled out.

Yet the debate has refused to die down, with Maura McGowan QC, chair of the Bar Council, bravely calling for anonymity to be restored to defendants, while earlier this week The Times’ Libby Purves voiced disquiet over the naming of those, like the 83 year old Rolf Harris, who have not even been charged.

On the other side of the argument Vera Baird QC, a former solicitor general and now Crime Commissioner for Northumbria has vigorously supported the status quo. She suggests that the naming of those charged – as in the case of London taxi driver and serial rapist John Warboys – can encourage other victims to come forward; although in Warboys’ case it was not so much his identification by name as the announcement that he was a taxi driver that encouraged other women to reveal that they too had been plied with drugged champagne before he raped them. Not mincing her words, she accuses the likes of Maura McGowan of practising “unbalanced and dangerous advocacy.” Anonymity for rape defendants she says, dates from 1976, a time when the establishment was “uniformly sexist” and it has no place in the modern world. It is, says Ms Baird, in her most withering tones, “reactionary”. And if we should have anonymity for alleged rapists, why not for murderers too?

Ms Baird is clearly right when she says that there is a logical inconsistency in giving anonymity to those accused of sexual offences but not with other serious offences, such as murder. Yet as a distinguished lawyer she will know that logic seldom provides the complete answer to difficult legal problems. The fact is that the law already recognises the unique difficulties of sexual cases by providing blanket anonymity to complainants, before, during and after any trial. Similar considerations, including a justified fear of a crazily disproportionate reaction to an untested allegation, suggest that defendants in these cases should at least be given a similar protection until they are convicted.

If this were the rule not only would defendants – innocent or guilty – be safer from physical attack, but their trials would be much fairer. Especially where celebrities like Mr Clifford are concerned, potential jurors would come to court without preconceived opinions on the case. They would not have been tempted to trawl the internet before hearing the evidence, and once sworn as jurors they would at least have to listen to the trial judge’s stern injunction to do no such thing during the trial.

What is more, if defendants had pre-trial anonymity we would be spared the disquieting feeling that both sides in an approaching court-room trial are slyly manoeuvring to win a pre-trial public relations battle. This is a very slippery slope. In the United States, where sub judice rules are almost non-existent, we have the routine spectacle of the District Attorney or the celebrity defendant’s lawyer feeding stories to the media in the lead up to the trial, brazenly trying to ensure that all potential jurors are prejudiced: a fair trial then requires the involvement of “jury consultants” tasked with ensuring that the actual jury consists only of those whom the earlier PR campaigns have missed.

With the greatest respect to Ms Baird it is neither sexist nor dangerous and certainly not unbalanced to say that we do not want to travel any further down that slippery slope. What we need in Mr Clifford’s case, as in all theYew Tree prosecutions, is fair treatment of both sides. That should start with a period of silence and end with a trial decided on the evidence produced in court.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

6 thoughts on “Should there be anonymity for rape defendants?”

  1. Broadly speaking, agreed, but you have not quite addressed Baird’s argument that naming the individual can encourage other victims to come forward. Yes, the Warboys case was more about the mention of a taxi driver, but what about other cases? The question really is, what is more important – the potential for further evidence or the protection of the defendant’s reputation?

  2. In a life full of embarrassing gafffes I’ve seldom said anything only to have egg splattered all over my face quite so quickly, Rumpole-Remix. If Lancashire Police are to be believed most of Stuart Hall’s victims only complained after hearing of his arrest. If this is so it does seem to vindicate Ms Baird’s point pretty triumphantly.

    And yet ….

    I still find it incredibly distasteful to have the names of individuals against whom nothing is proven plastered all over the press, and this goes for all crimes, not just sexual ones. Perhaps there could be a middle way – publicity on charge, but not on arrest?

  3. As if on cue, Nigel Evans is arrested on suspicion of rape. Innocent or guilty, his career is definitely in jeopardy. I think your suggestion of a middle ground – publicity on charge but not arrest – is spot on. A powerful example of the damage that public hype can do is the hysterical online finger pointing which led to the mis-naming of several innocent people supposedly “unmasked” by the public as the Boston bombers: http://www.bbc.co.uk/news/technology-22214511

  4. I think no one suspected or charged with an offence should be named before the jury gives a verdict unless naming them may prevent a further crime. Publishing someone’s name u believe to be under investigation or to have been charged should be an offence, as should describing them in enough detail that they can be identified.1

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