Defendants in sex offence trials were granted anonymity until 1988. The debate has been reignited in the wake of Operation Yewtree, the probe into child abuse by Jimmy Savile, and other high-profile allegations. Michael Le Vell, Coronation Street actor, was recently acquitted of sex offence charges, and Rolf Harris and Nigel Evans, former Deputy Speaker, will stand trial in the spring. In a recent ComRes/Independent survey three-quarters supported anonymity until conviction. Should the law be reversed?
YES–AC Grayling: In general I am opposed to anonymity, especially in blogs and on Twitter. Anonymity is a mask behind which people can hide when they say or write unpleasant and aggressive things, and this happens far too often. To argue that anonymity promotes a democracy of debate by allowing people to speak their minds freely is wholly unconvincing: it merely promotes malice. Matters might be different in China or Saudi Arabia where only officially-approved opinions are expressible, but in societies like ours there isno excuse for sneaking behind pseudonyms. If people have an opinion, let them stand up and be counted for it. If they wish to vituperate and sneer, let them do it under their own names and accept the consequences.
The exception is when people are arrested, irrespective of the crime, but most particularly on suspicion of crimes which carry a great deal of stigma, such as sexual offences. The general public expects the police and the Crown Prosecution Service to have good reason to arrest and indict someone on suspicion of criminality, so if a person is arrested and indicted but has his or her innocence established by the end of the grueling process thus begun, stigma and suspicion are likely to remain. Great harm is done to people in this way. Yet the harm is avoidable: only those found guilty of crimes should be publicly named. The presumption of innocence should be honoured, avoiding the jeopardy of causing serious injury to the innocent.
NO–Emily Thornberry: I am firmly of the view that bringing in anonymity for suspects, particularly for rape suspects, would be against the interest of justice. Reporting that someone has been arrested does not undermine the presumption of innocence. Being arrested is a statement of fact. Guilt is decided by a jury alone. We have laws on crime reporting and contempt of court to underpin this. Bringing in anonymity would actually confuse the conceptual clarity we have at the moment. It will suggest that we believe that you are probably guilty at the point of arrest, hence the sensitivity of the act. A system of anonymity also means a system of secret charges—is that something you are comfortable with? There are also practical ways in which naming the suspect is in the interest of justice. It can throw open new leads, for example by emboldening more victims to come forward. A reminder of this was the posthumous revelation that Jimmy Savile was a prolific paedophile, which triggered a flood of corroboration. Had the police named him in relation to these allegations while he was alive, justice might have been done.
Naming a suspect can also spur the memories of witnesses for both the prosecution and the defence. Anonymity advocates should remember that it is not in an innocent suspect’s best interests to be arrested, investigated, prosecuted and convicted because exculpatory witnesses had no idea they were in the frame.
I would be particularly opposed to singling out suspected sex offenders for special treatment. By offering them 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.
Recent research by the out-going Director of Public Prosecutions, Keir Starmer, has discredited the idea that false allegations are a particular problem with rape cases. During a 17-month period, the CPS brought over 5,000 rape prosecutions and just 35 for false allegations. Introducing anonymity for rape suspects would set the clock back on efforts to bring a more enlightened approach to these cases. It must not be allowed to happen.
YES: With respect, Emily misses the point. Public arrests for named crimes, and most especially such abhorrent crimes as rape or paedophilia, can and typically do attach a stain to a person so arrested, even if they are subsequently acquitted. They carry an implication of guilt which undermines a fundamental principle of law, the presumption of innocence. Shadow trial by press coverage makes matters worse for an innocent person wrongly suspected of offences. Consider the point of a trial: what is tested and examined is the prosecution’s case brought against a presumptively innocent person. But publicly announcing that a given individual has been arrested on suspicion of this or that crime focuses attention on that individual, who becomes the object of trial. In short, 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. On the basis of these considerations it ought to appear open and shut that a person’s anonymity should be protected until actual conviction, after which public knowledge can fairly be counted part of the penalty to be suffered by the convicted perpetrator.
NO: Far from missing the stigma point in my previous answer, I addressed it directly. Mr Grayling does not even attempt to tackle the manifold counter-arguments to anonymity that I then went on to raise.
The introduction of suspect anonymity would transform our criminal justice system from open and collaborative to closed and shrouded in secrecy. In this country, we do not have a police force that keeps the public in the dark. The aim has always been that the public works with the police to solve cases. That is as central to the British model of a benign, consent-based police force as the principle that our police do not carry arms.
Under the system that Mr Grayling proposes, not only would the BBC have to cancel Crimewatch, but investigations and charges would be carried out in secret. The circumstances in which the police could appeal to the public for evidence, both incriminatory and exculpatory, would be greatly curtailed. A trial that takes place without anyone knowing who is on trial is essentially a secret trial. This would result in miscarriages of justice, the innocent going to jail and the guilty getting away with it.
With respect, none of the points that Mr Grayling makes—indeed he only makes one—justifies introducing a reform with implications as far-reaching as these. He does not attempt to suggest that the current system is resulting in miscarriages of justice—that after all would require a bit of chapter and verse from recent cases. His case for dismantling our centuries’-old system of open justice boils down to 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. Some people may be, but a critical mass?
Having now dealt twice with the stigma issue, I would urge him to address the point I raised about how singling out sexual offences for suspect anonymity would revive the notion that rape complainants are a vindictive subset of victims, and that it is the suspect who needs protection. I point out to Mr Grayling that arguments to bring in anonymity for rape suspects are not new and that this has always been one of the biggest stumbling blocks. Any credible attempt to revive that argument must tackle this point head on.
YES: I’m afraid Ms Thornberry misses the point about missing the point. There is one fundamental issue at stake—the unacceptable risk of besmirching innocent people by parading them in public as being under suspicion for abhorrent crimes. Everything else—the police state, secret trials—is at the hysterical end of a slippery slope argument which (like so many such) is fallacious. But let us dwell on a couple of aspects of it.
For one minor thing: though we would of course all wail and gnash our teeth if the BBC cancelled Crimewatch, it would have no need to. The main purpose of the programme is to solicit information from any of the public who might have witnessed the commission of a crime. Unless Ms Thornberry thinks that Crimewatch is a kind of public pillory for the as-yet merely suspected, there is not only no need but no justification for anyone to be frog-marched about our television screens until a case against them has been proven.
Second, but much more important, we have a criminal justice system that requires that justice be seen to be done—by jury trial and public access to the courts. This is a far cry from front-page photographs being published of still-innocent and as-yet merely suspected persons, who are thereby put on the trial of tabloid-led public opinion resting only upon the presentation of such facts as journalism chooses to report.
The vast majority of arrests made by the police do not reach the newspapers. This does not mean that they are (note the emotive choice of words) “shrouded in secrecy,” with the police “acting in the dark.” The cases that are mainly reported are the salacious, scandalous, possibly major ones; all the better (from the press point of view) if the suspects are “celebrities.” This does not amount to the fine open system that Ms Thornberry imagines we have: it is merely cheap gossip. But the harm it does to individuals, if they are innocent, is very great.
The point Ms Thornberry misses about the point she misses, therefore, is that there is only one crucial consideration at stake. It is the root of the issue which, once cut, fells all the sky-waving branches of her anxiety about what would follow if we are not allowed to point our fingers at possibly-innocent people, thus staining their reputations and stealing from them the trust and confidence all of us need others to place in us for the ordinary business of life. She claims to have addressed the stigma issue: obviously without any real comprehension of what is at stake in it. I guess she would appreciate it better if she found herself the target of press speculation about something nasty of which she is innocent but suspected.
NO: I can assure Mr Grayling that I do understand the stigma involved in being named as a suspect in a criminal case. Such individuals were my clients during the 25 years I worked as defence counsel at the Criminal Bar. What I contest is his assertion that this is the only fundamental issue at stake. There are many competing factors to weigh and no one with any grasp of the workings of the criminal justice system would suggest otherwise. It is of course deeply unpleasant and stigmatising to be named as a suspect in a serious criminal case—or indeed to be named as a suspect of a minor crime in a local paper (it’s not clear whether Mr Grayling wants us to ban that, too). However, against that one must consider that failure to name them and therefore to exhaust all lines of enquiry towards and away from the suspect will result in justice not being anonymity for done. This is why Keir Starmer, along with this country’s leading rape charities, all oppose suspect anonymity. This is not because they have a penchant for “cheap gossip” but because of their real concern that its introduction would see serial offenders, such as John Warboys [the “Black Cab Rapist”], escape justice. A partial introduction of anonymity just for rape suspects would also revive harmful and erroneous myths about the prevalence of malicious allegations. That in turn would deter victims from coming forward. To insist that reputational harm to the suspect is the only relevant consideration is ignorant and wrong.
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