Tag Archives: complainant

Defendant anonymity (part 2)

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[Go here for the first part of this extended post…]

A summary of the debate (continued)

Since 1981 it has been the law in the Republic of Ireland that defendants in rape [1] trials cannot be identified pre-conviction. There is a provision [2] – which deals with Thornberry’s claim about the availability of defence witnesses – for the defence to apply to the court to have defendant anonymity lifted in order to induce potential witnesses to come forward.

There are those who argue, post-Clifford, that this provision is not in the public interest. But it has been on the Irish statute book for 33 years. Should England and Wales have a similar provision, but for a rather wider range of sexual offences?

Comment

As we pointed out in our last post, in 2013 fully 32% of those charged in England and Wales for rape, child sex abuse, indecent assault and other types of sexual offending were not convicted or cautioned.

10,365 sexual offences were proceeded against in 2013. 5,659 people were found guilty. 1,349 people were cautioned. This means that 3,357 people (just over 32%) were not convicted and retain, in law, their innocence. Nearly 3,500 people, in one year alone, risked being publicly identified with the slur and stigma of sexual offending and carrying that burden into the rest of their lives.

Note that this is despite the relaxation of the law since the 1990s in terms of corroboration and hearsay. The conviction rate in 2013 for this kind of offence was truly lamentable. It confirms our belief that the Crown Prosecution Service does not weed out enough cases before the charging stage.

Once a sexual complaint is made, and as long as the complainant sticks to his or her complaint, the likelihood is that the matter will proceed to charge and to trial. If there are internal inconsistencies in the complainant’s evidence, some attempt will be made by CPS and police to close up those holes. But the inconsistencies – unless they make it crystal clear that the complainant was fabricating and that no offence could have taken place – will not usually lead to a decision not to prosecute. This is because the CPS prefers to have such matters tested by the court, rather than take such decisions itself. It is politically more expedient, in the current climate, to be criticized for obtaining too few convictions than to be criticized for being ‘soft’ on sexual offending.

To see how the CPS’s sometimes cavalier attitude towards charging and proceeding to trial can work out on the ground, let’s look at the prosecution of Nigel Evans, former deputy speaker of the House of Commons. This was a high-profile case. A prosecution was mounted even though complainants said in court that they did not consider themselves victims of any criminal offence, nor had they wanted to complain to police. Some of the witnesses “suggested they felt pressured by police into appearing as alleged victims in the high-profile trial.”

There was another complainant who alleged rape against Evans, thought the facts were strongly disputed around the issue of consent. The prosecution aim here was clearly to use the weaker allegations to bolster the rather stronger one, a technique known as “bundling”.

Nigel Evans was acquitted on all counts. He is having difficulty recouping his £130,000 legal defence costs. He is likely to carry the effect of these failed proceedings publicly for many years. Personal details of his personal life have been under the public gaze as a result.

So the question ought to be, not “why should there be pre-conviction defendant anonymity in the these cases?”, but “why should there not be?”. The government, CPS and police cannot have it both ways. If they insist for reasons of political expediency on charging people a third of whom they know will probably be acquitted, then the case for defendant anonymity is overwhelming.

Michelle Healey argues at Halbury’s Law Exchange that:-

… those accused of sexual offences ought not to be named unless they are charged. This would offer a person who is investigated but then exonerated the chance to move forward with their life without negative publicity. It would also ensure that if the CPS were making a charging decision they would look only at the offence charged and assess the weight of the evidence to see whether there is a reasonable prospect of success, rather than looking at numerous allegations and allowing potentially weaker allegations to be charged in order to shore up a conviction on potentially stronger cases… Once charged then it is right and proper that a suspect be named, as they would be in any other criminal case.

Healey is working along the right lines, but she does not go far enough. If defendant anonymity is lifted post-charge and pre-conviction, untold damage can still be done where there is an eventual acquittal, as there was in 32% of cases in 2013. Defendant anonymity in sexual offence cases should be in place from the moment of original complaint until the moment of conviction.

  1. This provision doesn’t extend to other kinds of sexual offence.  ↩
  2. Section 8 (3) of the Criminal Law (Rape) Act 1981.  ↩

Defendant anonymity (part 1)

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In England and Wales, the complainant in a sexual offence prosecution is conferred life-long anonymity. Nothing can be published which is likely to lead members of the public to identify them. It would be contempt of court to do so.

Should the defendant in such cases be granted anonymity also, at least unless and until convicted?

There has been vigorous debate over the last few years about this. Over two posts, we will describe some of the arguments made for and against, and then contribute some thoughts of our own.

A summary of the debate

A lively discussion took place in November 2013 between philosopher A C Grayling and Emily Thornberry, Labour MP and Shadow Attorney General.

A C Grayling’s explicit “one fundamental issue at stake” [1] is “the unacceptable risk of besmirching innocent people by parading them in public as being under suspicion for abhorrent crimes”. Even if a defendant in this kind of case is acquitted, stigma and suspicion are likely to remain. Conferring anonymity on a defendant until a conviction takes place honours the presumption of innocence and avoids the jeopardy of causing serious injury to that person:-

… publicising the name and alleged crimes of a “suspect”—a person under suspicion; a person under a cloud therefore—is already to begin punishing that person, and if she or he is innocent, that punishment is unjust [2]…

For A C Grayling, all arguments which try to counter this fundamental issue are slippery slope arguments.

Thornberry disagrees. A C Grayling’s argument is based on “a patrician hunch that the public is too stupid to grasp the meaning of the presumption of innocence or of an acquittal by a jury of one’s peers” [3]. We do not have a police force that keeps the public in the dark [4]. The aim has always been that the public works with the police to solve cases. Naming defendants can jog the memory of potential witnesses, both for the prosecution and for the defence [5]. Anonymity would not be in the defendant’s best interests, because exculpatory witness will not know to come forward [6].

Thornberry continues:-

By offering [suspected sex offenders] a layer of protection not provided to other suspects, we would fan a pernicious myth that there is something inherently unreliable, unstable and vindictive about rape complainants, setting them apart from other types of victim.

for…

Recent research by the… Director of Public Prosecutions… has discredited the idea that false allegations are a particular problem with rape cases… Introducing anonymity for rape suspects would set the clock back on efforts to bring a more enlightened approach to these cases.

But that’s not the point. No one is claiming that the system is rife with false allegations, though there are probably more than the DPP’s statistic would lead us to believe. In any event, there are doubtless more cases where a complainant’s evidence is unreliable for a whole range of possible reasons [7]. The better test would be to inquire as to how many convictions and how many acquittals there have been for sexual offences over a given period.

In May 2014 the media reported that “conviction rates in England and Wales for rape, child sex abuse, indecent assault and other types of sexual offending fell from 61 per cent to 55 per cent in 2013”.

Fully 32% of those charged who were not convicted or cautioned. This suggests (1) that too many complaints proceed to prosecution (see more on this in our next post); and (2) that A C Grayling’s “one fundamental issue” is more telling than Thornberry wishes to admit.

Barrister Blogger is supportive of defendant anonymity. He points out that it was in fact the law, in rape cases, in England and Wales between 1976 and 1988 – it’s been done before. Yes, he admits, there is a logical inconsistency in granting defendant anonymity in sexual offence cases but not in other serious cases, such as murder. But:-

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.

What’s more, he says, anonymity would lead to fairer trials, especially in celebrity cases, and it would “avoid the pre-trial public relations battle”.

Legal academic Richard Glover is not convinced. He takes the point about potential damage to innocent defendants’ lives and reputations, and “can certainly sympathise with” their predicament. However, he feels that “the important principle of open justice” militates against defendant anonymity.

That’s probably the strongest point against defendant anonymity. But ultimately it’s not compelling. Open justice is a hallmark of a democratic society. Yet the principle has already been breached for complainants. And what price “open justice” where the outcome of an acquittal is that an innocent person justifiably fears unwarranted and undeserved social stigma?

In our next post we consider the position in the Republic of Ireland, where there is defendant anonymity in rape cases, and we set out our own conclusions.

 

  1. for which he is roundly criticized by Thornberry.  ↩
  2. Barrister Blogger and law academic Richard Glover both put forward versions of this argument, one to support it, the other to say it is “misleading”.  ↩
  3. This is an ad hominem argument, and so probably should be discounted. No one is suggesting people are stupid. But the emotional potency surrounding sexual offences is so great that, despite logic, stigma is likely to last, despite acquittal. As in: “Wasn’t
    s/he the person who was accused of…?”      ↩
  4. Which way does Thornberry want it? We are being “kept in the dark” about the identity of sexual offence complainants, and she and most people believe that that is right and appropriate. Rather than using emotive language, it would be better to concentrate on why, in her view, there should be no parity here between complainant and unconvicted defendant.  ↩
  5. A specious argument. If publicity does help to bring forward any further complaints, why not gazette all the names of defendants charged with sexual offences? Because that would smack of witch hunt and persecution. Thornberry’s “emboldening more victims” arguments carries little weight.  ↩
  6. This is not how it works. A defendant and his or her lawyers can and will find their own witnesses.  ↩
  7. though it is almost blasphemous to say so in the current climate…  ↩

Ministers of justice?

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In England and Wales [1], criminal trials take place adversarially. Before an impartial tribunal, evidence of alleged criminality is put forward by the Crown and answered by the defendant, and a jury (in serious cases) determines which account is true.

For justice to result, certain principles have to be kept to. Some of them are:-

  • it’s for the prosecution to prove their case, not for the defendant to disprove it
  • a defendant is regarded as innocent until proven guilty
  • a jury cannot convict unless it is sure [2] that the defendant is guilty of the offences charged
  • the judge and prosecutor must act according to standards of impartiality and fairness.

Previously we argued that both a new-found focus on the ‘victim’ and a growing irrational moral panic about sexual offences is changing the criminal justice system in England and Wales for the worse – and particularly in sexual offence cases. These twin emphases are disturbing the critical balance of fairness in this adversarial process.

Here we claim that prosecutors too often allow themselves to be sucked into this obsession with ‘the rights of the victim’ and morality. Insofar as they take that step away from objectivity, they begin to act as advocates for the ‘victim’ rather than as ministers of justice.

But first, some generally accepted international standards by which prosecutors are supposed to act.

Standards

In 1990 the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders set out a number of guidelines, among them:-

13. In the performance of their duties, prosecutors shall: (a) Carry out their functions impartially and avoid all… discrimination; (b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;…

It is interesting to note that a balance between the position of the victim and the suspect is explicitly required here.

The American Bar Association sets the following out as Standard 3- 1.2(c) of its prosecution standards:-

The duty of the prosecutor is to seek justice, not merely to convict.

The Standards of Advocacy of the Public Prosecution Service for Northern Ireland state:-

4. …It is not the duty of Prosecution Advocates to obtain a conviction by any means at their command…

6. Prosecution Advocates must have regard to the comments of the court in R -v- Gonez [1999][3].

“……it is the role of prosecuting counsel throughout a trial… to act as a minister for justice… It is incumbent on counsel prosecuting not to seek to excite the emotions of a jury… A final speech should… be a calm exposition of the relevant evidence,… and an equally calm invitation to draw appropriate inferences from that evidence.”

There is more helpful guidance in the judgment of the Court of Appeal in Northern Ireland in the case of R v Anthony West:-

In Boucher v. R [1954] 110 CCC 263 it was stated:- “It is the duty of Crown counsel to be impartial and exclude any notion of winning or losing. He violates that duty where he uses inflammatory and vindictive language against the accused and where he expresses a personal opinion that the accused is guilty.”

That judgement mentions with approval the passage from R v Gonez and quotes from paragraph 1701 of Code of Conduct for the Bar of Northern Ireland:-

“It is not the duty of prosecuting Counsel to obtain a conviction by all means at Counsel’s command but rather to lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution…”

and from the Public Prosecution Service Code, paragraph 5.1.5:-

“A prosecutor must not advance any proposition of fact that is not an accurate and fair interpretation of the evidence…”

Commentary

It used to be the invariable rule that prosecution counsel would steer clear of talking to any prosecution witness, in an attempt to preserve and demonstrate impartiality. It’s now common for the complainant to be seen by counsel in sexual offence cases, before and during the trial. No one is suggesting that anything improper takes place. Often, the visit is to ensure that the complainant is feeling supported and is having his or her needs met. Still, this risks damaging an important principle of apparent impartiality.

There are other examples of a tendency towards prosecutorial non-objectivity – or, which is as bad, the appearance of it – which we will explore more full in later posts. Here are some of them in a nutshell.

The blurring of lines – in prosecution opening speech, cross-examination and final speech – between, on the one hand, evidence of criminality and, on the other, evidence of unwisdom, sleaziness or inappropriateness well short of criminality.

A habit of commenting on a defendant’s people skills, parenting skills, remoteness or ‘touchy-feely’ tendencies [4], or general demeanour.

The use of ‘similar fact’ or ‘bad character’ rules and applications to bring into the examination of alleged criminal behavior all kinds of actions or omissions which, in themselves, are simply part of the rough and tumble of everyday life.

The repeated use of ‘victim’ and ‘paedophile’ where less emotive words such as ‘complainant’ and ‘sexual offender’ would do.

To be scrupulously fair, prosecutors are in a cleft stick. They want to get appointed to the next case. Unless there is corroborative evidence, it is often the word of complainant against defendant. Quite naturally, prosecutors will feel frustrated at not having a knock-down piece of evidence to wave around, or a killer point to be able to make to the jury. So they amass material, some of it relevant, some of it less so, in the hope that, if they throw enough mud, some of it will stick.

The line is a fine one, but it is quite frequently transgressed. To the extent that this line is crossed, justice is not well served.

 

  1. as in various other jurisdictions.  ↩
  2. beyond reasonable doubt, though that formulation is used less nowadays.  ↩
  3. [1999] All ER (D) 674  ↩
  4. If a defendant is “remote”, he has something to hide. And, if he is ‘touchy-feely’, that’s evidence of, well… you can see what we are getting at here.  ↩

Victim-centered justice? (part 2 of 2)

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[Go here for the first part of this extended post…]

Gittos claims that, as it turned out, this new approach helped pave the way…

for a justice system which has spent 16 years completely reorientating itself away from objectivity and dispassionate assessment of evidence and towards elevating the rights of the victim at the expense of due process.

It’’s a good point. Nowadays a complainant can give evidence from behind a screen or by video link. His or her witness statement will have been taped, and it will often form the bulk of that person’s evidence at any trial. Meanwhile, the defendant sits in a dock, most often behind a thick glass screen, wearing headphones so that s/he can hear. S/he is semi-detached from what’’s going on in court.

The complainant will often be asked whether s/he needs a rest break, and will often be allowed to sit to give evidence. None of this solicitousness is likely be afforded to the defendant [1]. It could easily look (although this is surely not the intention) as if the whole process is ‘on the side’ of the complainant, and by implication ‘against’ the defendant.

In any event, as Gittos points out, the screen/ video link provision:

…removed an ancient legal principle – that a defendant should stand face to face with their accusers – in order to make the experience of engaging in the process easier for victims.

And then there was a further development, one which again appeared at the time to be beneficial.

[I]n 2007, Harriet Harman introduced the Victim Impact Statement. This allowed for victims to read prepared statements to the court, detailing how a crime had affected them emotionally, prior to the judge making a decision on sentence. Judges were quite open in stating that such statements could materially affect the sentence passed.

Gittos is arguably right to say:

[T]he sentencing process, which had been traditionally undertaken in the name of preventing further harm to society at large, became about repaying, through a deprivation of the defendant’’s liberty, the emotional harm done to the victim.

On the face of it, there is much that was positive about these initiatives. Who wouldn’’t want to make a demanding and difficult process easier for complainants? And why not involve them more in sentencing outcome? But the point is this.

Add together the provisions designed to support complainants and facilitate the difficult process of making a complaint and giving evidence. That is: taped complaint interview(s); the screen or video link; judicially expressed concern for the complainant’’s comfort and wellbeing; and court orders conferring lifelong anonymity on complainants, while the defendant’’s identity and personal story is often explored in excruciating detail for all to hear [2]. Compounded together, with others, these provisions can have an effect on the dynamic of any trial.

They can and often do detract from balance and objectivity.

They tend to confer an aura of dignity and truth-telling on a complainant. (S/he may or may not be telling the truth, but that’’s not the point.)

They tend to elicit sympathy, whereas this process should be about fact, not emotionality. It’’s a real trial, with real outcomes, not Boston Legal.

Taken together, they can easily communicate a sort of diffuse impression on a jury that the defendant is more likely to be guilty. S/he may be, of course, although, equally, she may not. But that determination, as to guilt or innocence, must only be about the quality of hard evidence, not about sympathy or about how courts and trials are set up to run.

As, again, Gittos puts it:

These reforms represented a clear move away from a criminal-justice system that prioritised objectivity to one which prioritised the stories and feelings of the victim. The victim went from being the invisible ‘third party’ in disputes between the state and the citizen to being the central focus.

Criminal trials, and especially those for extremely serious offences, are meant to be about an analysis and a determination. Analysis of the evidence. Determination of the truth: innocent or guilty. Anything that gets in the way of these ends brings about unfairness and damage, not only to human lives but also to the system of justice. Arguably, a strongly victim-centered criminal justice system is, in the end, damaging to justice, to fairness, and to the rule of law.


  1. who (and it needs to be said really quite often) is adjudged at this stage in this prosecution process to be as innocent as the complainant.  ↩
  2. This theme will be the subject of later posts.  ↩


Victim-centered justice? (part 1 of 2)

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Here’’s how the prosecution system worked in England and Wales until at least 1994. (This applied to sexual offence cases and also to other kinds of offence based on a complaint.)

After a complaint a police inquiry would be initiated. The complainant was an important part of that process, but the police and CPS would be agnostic, for the moment, about whether s/he was reliable or telling the truth. After all, there could be any number of reasons for a complaint, some of them positive, others less so; and recall of events exists on a sliding scale of accuracy [1]. Of course, the whole point of the police inquiry was to test whether the complaint had any basis in fact and was evidence of a crime committed.

The police would follow up any number of relevant leads, and not just those supporting a prosecution. The aim was, in part, to assess the veracity and reliability of the evidence as the inquiry developed.

At a suitable juncture, a file would be sent to the CPS, and an assessment would be made on various criteria. On the evidence gathered, was a conviction more likely than not? Was it in the public interest to proceed to trial? At this point, instructions could be given to the police to make further inquiries to gather more evidence or to finesse that which they had already collected.

The key point here is this. The police and the CPS would together be acting independently. They were not agents of the complainant. They did not represent him or her in any way. Any trial would, importantly, be R [2] v John or Jane Doe, not Complainant A v John or Jane Doe. The complainant was a witness: a vital one, but nothing more. His or her evidence was to be evaluated like the evidence of any witness, for veracity and reliability.

Yes, this system could come over as a little aloof. Mostly because care would have been taken to treat the complainant as a witness and his or her evidence as just that: evidence, like any other. The task of police and CPS was to keep at arm’s length from the complainant and not to get sucked in to any agenda being worked out by him or her.

And then it all changed……

Luke Gittos sets out usefully what then happened.

In 1999, the New Labour government decided that [the] focus on objectivity and impartial judgement failed to do justice to the victims of crime. Jack Straw… said [3]: ‘”For too long, victims of crime have not been given a proper support and protection they deserve. This must change. I am determined to ensure that their needs are placed at the very heart of the criminal-justice system” [4].’….. The Youth Justice and Criminal Evidence Act 1999 allowed evidence from vulnerable witnesses to be given behind a screen or via a video link…. The Criminal Justice Act 2003 then extended these protection to all witnesses, whether considered vulnerable or not, as long as certain statutory criteria were met……

The intentions were no doubt commendable. There is every reason why complainants should be treated kindly and respectfully and their allegations should be taken seriously. The exercise of sensitivity towards a complainant is right and proper in itself. Apart from anything else, such care also helps ensure that complainants feel able to come forward in the first place.

But this should never be – and should never have been – at the expense of objectivity and impartiality……

[continued in the next post]


  1. As a hedge against this, the personal consent of the Director of Public Prosecutions used to be required for a wide range of sexual offence prosecutions. (Consent is still needed in a much narrower range of abuse cases.) Until 1994, corroboration (namely, some form of independent evidence confirming an element of the complainant’’s testimony) was also required by common law in certain cases.  ↩
  2. ‘‘R’’ = ‘’Regina’’, ‘”the Crown’’.  ↩
  3. ‘Partners Against Crime’, Victim Support Magazine, Summer 71, p 8. ↩
  4. There is an obvious problem with what Straw said here. He appears to assume that the complainant is axiomatically believable and reliable as a witness. But this is the very thing that any well-founded trial system is meant to determine – on the basis or evidence and nothing else. Should a complainant’s “needs” be placed “at the very heart of the criminal-justice system”? Not at the expense of a fair determination of guilt or innocence.  ↩