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Select Committee on Home Affairs Fifth Report


7. Anonymity

63. In contrast to the position of complainants in sex cases, defendants currently do not enjoy the benefit of anonymity.[84] We therefore asked, at the start of this inquiry, whether this was a significant omission from the Bill. So far, the Government has said that, whilst it is willing to listen to the arguments on this issue, it has no plans to extend anonymity to the accused.[85] However, in a recent development, the House of Lords have passed an amendment which will give "the defendant in rape etc. cases… the same right to anonymity as is enjoyed by the complainant" (new Clause 2).[86] We understand that the Government will seek to reverse this in the Commons.[87]

Background

64. Our interest in this question was first raised during an earlier inquiry into the conduct of investigations into past cases of abuse in children's homes, often carried out on the basis of slender evidence. In some cases the allegations dated back 20 or 30 years. During that inquiry, we became concerned about the potentially ruinous impact of publicity on those accused of past sexual abuse of children. We therefore suggested that anonymity be extended to the accused in those cases.[88] However, it was beyond our remit in that inquiry to consider whether anonymity should be extended more generally to all sexual offences and it is this question that we now seek to address.

Anonymity for complainants

65. Anonymity was first introduced in 1976 for complainants in rape cases[89] and was subsequently extended to complainants in other sex cases.[90] At present, the restriction on publication applies from the moment that an allegation has been made and it continues for the rest of the complainant's lifetime.[91] The protection, however, is not absolute as there are circumstances in which the court can lift the restriction, for example to induce other witnesses to come forward. In addition, the judge has a broad discretion to lift the restriction if satisfied that it would "impose a substantial and unreasonable restriction upon the reporting of the proceedings at trial and it is in the public interest to remove or relax the restriction".[92]

66. The rationale for granting anonymity to complainants in rape cases was set out in 1975 by the Heilbron Committee:

"public knowledge of the indignity which [the complainant] has suffered in being raped may be extremely distressing and even positively harmful, and the risk of such public knowledge can operate as a severe deterrent to bringing proceedings…The balance of argument seems to us to be in favour of anonymity for the complainant other than in quite exceptional circumstances. While fully appreciating that rape complaints may be unfounded, indeed that the complainant may be malicious or a false witness, we think that the greater public interest lies in not having publicity for the complainant. Nor is it generally the case that the humiliation is anything like as severe in other criminal trials: a reprehensible feature of trials of rape…is that the complainant's prior sexual history…may be brought out in the trial in a way which is rarely so in other criminal trials."[93]

67. Whilst there have been developments in relation to prior sexual history evidence,[94] anonymity has been retained (and is widely supported) as a policy for encouraging victims to come forward.

Anonymity for the accused

68. Anonymity for the accused is not a novel concept. Defendants on rape charges were protected by a reporting restriction for a period of some 12 years, from 1976[95] to 1988.[96] The restriction was introduced at the Commons Report Stage of the Sexual Offences (Amendment) Bill in 1976, as a concessionary Government amendment. The Bill as introduced had made provision for the anonymity only of complainants, in line with a recommendation of the Heilbron Committee.[97] However, when the Bill went to Standing Committee, the Committee voted by a large majority to extend anonymity provisions to the defendant in rape cases.[98] Consequently, the Act brought in reporting restrictions for both the complainant and defendant in rape cases.

69. The reasons for extending anonymity to defendants in 1976 appear to have been two-fold. First, it was seen to be necessary to ensure equality in the law between complainants and defendants. Secondly, it was argued that potentially innocent defendants needed to be protected from the social stigma of a rape allegation, which often remained for life, notwithstanding an acquittal.

70. Anonymity for defendants was repealed in 1988 on a recommendation of the Criminal Law Revision Committee. The Committee argued that there was no reason to distinguish rape defendants from defendants of other crimes (e.g. an acquittal of homosexual soliciting may be no less damaging than one on a charge of rape). It also suggested that the argument about equality between the parties was not a valid one "despite its superficial attractiveness".[99] These reflected the views expressed, almost a decade earlier, by the Heilbron Committee, which had said that:

"it [was] erroneous to suppose that equality should be with [the complainant]—it should be with other accused persons and an acquittal will give him public vindication."[100]

71. During this inquiry, we found strong arguments both for[101] and against[102] the restoration of some degree of anonymity for the accused, and it is to this question that we now turn.

Should anonymity be extended to the accused?

72. We have identified four arguments against any extension. First, we were reminded that the general principle is that justice should be open, "with free and full reporting of what happens in our criminal courts".[103] This implies that anonymity should be the exception rather than the rule. Secondly, it is said that, whilst there are strong public policy reasons for granting anonymity to complainants in sex cases (i.e. to encourage victims to come forward), the same reasoning does not apply to the accused.[104] It is therefore suggested that there is no strong case for extending the restriction any further. Thirdly, it is argued that persons accused of sexual crimes should not be treated any differently to those accused of other crimes.[105] On this point, Professor Liz Kelly states:

"The idea that those accused of sexual crimes should be privileged can only be sustained if one takes a position that either these crimes are of an entirely different order than any other and/or that there is a far higher rate of 'false accusations'."[106]

73. Fourthly, it is suggested that anonymity for the accused would undermine the police's ability to investigate sexual crimes.[107] Several witnesses said that one of the advantages of publicising the identity of the accused is that other victims, of similar offences by the same person, will often come forward to give evidence.[108] Witnesses to our inquiry have also argued that the concept of achieving equality between the parties is superficial.[109]

74. Other witnesses, however, were in favour of extending anonymity to the accused in sex cases. This included the Metropolitan Police who expressed support for a limited anonymity provision in cases involving children.[110] We identified four arguments in support of the principle. First, there is the equality argument. It is said that we have an uneven playing field because the complainant has anonymity but the accused does not.[111] The implication is that the accused is placed at a disadvantage. Secondly, it is suggested that because of the prejudicial nature of sex offences, the accusation alone can have a devastating effect on the accused—whether or not it is proved to be true. Publicity can therefore be ruinous to the individual, even though he may be acquitted of the charges.[112] The Metropolitan Police believe that publicity is particularly damaging in sex cases involving children. It states (without further explanation) that "current research indicates that between 5% and 7% of persons arrested for child abuse related offences commit suicide".[113] The third argument is that publicity can inflame public outrage and disorder, which sometimes leads to threats or attacks against the accused.[114] Fourthly, it is suggested that anonymity for the complainant increases the risk of false allegations[115]—a danger which was also recognised by the Criminal Law Revision Committee back in 1984.[116]

75. In addition, the Criminal Bar Association provides a counter-argument to the concern about undermining police investigations. It points to the fact that the anonymity provision for complainants does not offer absolute protection because the restriction can be lifted by the court in appropriate circumstances. A similar proviso could therefore be incorporated into the reporting restriction for the accused (as was the case in 1976).[117]

76. On balance, we are persuaded by the arguments in favour of extending anonymity to the accused. Although there are valid concerns about the implications for the free reporting of criminal proceedings, we believe that sex crimes do fall 'within an entirely different order' to most other crimes. In our view, the stigma that attaches to sexual offences—particularly those involving children—is enormous and the accusation alone can be devastating. If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal.

The scope of anonymity for the accused

77. There are three levels of protection which could be afforded to the accused in sex cases. First, anonymity could be limited to the pre-charge period, as favoured by the Metropolitan Police. Secondly, it could apply from charge to conviction, as was the position in 1976 for defendants in rape cases.[118] Thirdly, it could apply to both the pre-charge and post-charge period, i.e. from allegation to conviction.

78. In our view, there are obvious limitations with the second option. If, as is often the case, the identity of the accused has been publicised before a charge is brought, then any post-charge reporting restriction would be meaningless. The first option offers only limited protection.[119] For those who are charged, but not convicted, the post-charge publicity may have a devastating and possibly permanent impact. We understand that anonymity for the accused before charge is already recommended in guidance issued by the Association of Chief Police Officers.[120] However, even the Parliamentary Under-Secretary in the Home Office, Hilary Benn, recognised that suspects' names can still find their way into the media[121]—as happened recently in the case involving Matthew Kelly.[122]

79. Only the third option offers full protection to potentially innocent individuals who are accused of sexual offences. This, however, would impose a major restriction on the free and full reporting of criminal proceedings and raises difficult questions about the extent to which the public have a right to know that someone has been charged, but not convicted of a crime. Hilary Benn added that:

"if the person is not named and is then acquitted then no-one will ever know…whether other people might have been able to come forward in those circumstances and provide information which was relevant to the case."[123]

80. We therefore recommend that the reporting restriction, which currently preserves the anonymity of complainants of sexual offences, be extended to persons accused of those offences. We suggest, however, that the anonymity of the accused be protected only for a limited period between allegation and charge. In our view, this strikes an appropriate balance between the need to protect potentially innocent suspects from damaging publicity and the wider public interest in retaining free and full reporting of criminal proceedings.


84   In this context 'anonymity' refers to statutory restrictions on the publication of matters relating to a person, in order to protect that person's identity.  Back

85   Q189. See also, Home Affairs Committee, Second Report of Session 2002-03, Criminal Justice Bill, HC 83, Q 440 (Lord Falconer of Thoroton QC, Minister of State, Home Office) Back

86   The amendment was moved by Lord Ackner and passed by 109 to 105 votes. HL Deb, 2 June 2003, cols 1084-1097.  Back

87   It has been reported that the Home Office will seek to reverse in the Commons: 'Lords defy Labour on rape case anonymity', Daily Mail, 3 June 2003; 'Blair Rape Name Defeat', The Mirror, 3 June 2003. Back

88   Fourth Report of Session 2001-02, The Conduct of Investigations into Past Cases of Abuse in Children's Homes, HC 836-I, paras 98-99 Back

89   Sexual Offences (Amendment) Act 1976, s 4 Back

90   The Sexual Offences (Amendment) Act 1992, s 2 now makes provision for anonymity in relation to a full range of sexual offences, including rape. Back

91   Sexual Offences (Amendment) Act 1992, s 1 Back

92   Ibid, s 3 Back

93   Home Office, Report of the Advisory Group on the Law of Rape, Cmnd 6352, December 1975, p 27, para 153-157 Back

94   See the Youth Justice and Criminal Evidence Act, s 41 Back

95   Sexual Offences (Amendment) Act 1976, s 6 Back

96   When it was repealed by Criminal Justice Act 1988, s 158(5). Back

97   Home Office, Report of the Advisory Group on the Law of Rape, Cmnd 6352, December 1975, pp 27-31. The Committee recommended that anonymity should be introduced for complainants in rape cases, but not for defendants.  Back

98   Stg Co Deb, Standing Committee F, Sexual Offences (Amendment) Bill, 7 April 1976 Back

99   Fifteenth Report of the Criminal Law Revision Committee, Sexual Offences, Cmnd 9213, April 1984 Back

100   Home Office, Report of the Advisory Group on the Law of Rape, Cmnd 6352, December 1975, p 31, para 177 Back

101   Those in favour of some form of anonymity included the Metropolitan Police (in favour of a limited form only), the Criminal Bar Association, False Allegations Support Organisation and JUSTICE. Back

102   Those against included Professor Liz Kelly, the Police Federation, Liberty and Victim Support.  Back

103   Ev 32, Joel Bennathan. See also Ev 96, Police Federation: "Against anonymity is the argument that justice must not only be done but be seen to be done". Back

104   Ev 75, Liberty Back

105   Ev 38, Professor Liz Kelly; Q 108 Cathy Halloran (Rape Crisis Federation/Campaign to End Rape) Back

106   Ev 38 Back

107   Ev 38, Professor Liz Kelly. In her book, Rape and the Legal Process, Professor Temkin cites an instance in 1986 when the Wiltshire Police felt inhibited by the anonymity rules from publishing the name of a man who was wanted for rape. He subsequently raped another woman before being caught. Jennifer Temkin, Rape and the Legal Process (OUP,2nd Edn) p 308. Back

108   See for example, Qq 98-99, Cathy Halloran (Rape Crisis Federation/Campaign to End Rape) and Ev 38, Professor Liz Kelly Back

109   Ev 31, Joel Bennathan Back

110   Ev 86 Back

111   Q 195, Peter Rook QC (Criminal Bar Association),; Q 102, Janet Arkinstall (JUSTICE) Back

112   See for example, Ev 51-53, Ivan Geffen Back

113   Ev 86 Back

114   Ev 86, Metropolitan Police Back

115   Ev 47, Criminal Bar Association Back

116   Fifteenth Report of the Criminal Law Revision Committee, Sexual Offences, Cmnd 9213, April 1984, p 27, para 2.92 Back

117   Q 96, Peter Rook QC (Criminal Bar Association) Back

118   Sexual Offences (Amendment) Act 1976, s 6(1) Back

119   Although those who are accused, but are never charged would remain anonymous. Back

120   HL Deb, 2 June 2003, col 1092, Lord Falconer of Thoroton QC (Minister of State, Home Office) Back

121   Q 193 Back

122   The television celebrity was arrested in January this year as he came off stage, after a pantomime performance of Captain Hook in Birmingham. His arrest and subsequent investigation was widely publicised in the national and regional press under headlines such as 'Matthew Kelly held over child sex', 'Matthew Kelly accused of sex attacks on boys' and 'Matthew Kelly, the camp entertainer with an unconventional marriage; the weird life of Mr Saturday Night TV'. A month later, the police decided to take no further action on the grounds that there was insufficient evidence to charge. Back

123   Q 189 Back


 
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