Defendant anonymity (part 1)

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…  ↩