APPENDIX 2
Memorandum submitted by Mr Joel Bennathan,
Barrister, Tooks Court Chambers
ANONYMITY FOR THE DEFENDANTS IN RAPE CASES
A NOTE TO THE HOME AFFAIRS COMMITTEE
1. I am very pleased to be asked to submit
my views on this topic to the Home Affairs Committee. By way of
introduction, I am a barrister with a practice predominantly made
up of defending in criminal proceedings and criminal appellate
work. I have had conduct of cases dealing with allegations of
sexual abuse and misconduct, including rape, though this is not
an area in which I particularly specialise. I have written and
commentated on various aspects of the criminal law and proposals
to change it. I ought perhaps to declare my political affiliation
as deputy chair of the Society of Labour Lawyers, though this
topic does not seem to me to have an obvious party political perspective.
2. An examination of proposals to extend
anonymity from complainants to defendants ought to start with
an appreciation of why the existing protection exists so, at the
risk of rehearsing the obvious, here it is. A woman who is raped
is perceived as being humiliated and degraded, no matter how blameless
or virtuous her life and conduct. The reasons behind this are
wrapped up in the sexual attitudes of all societies and go back
hundreds, if not thousands, of years. Without the guarantee of
anonymity the already very low reporting rate of rape would plummet.
In order for the guarantee to be meaningful it has to be life-long
and irrespective of whether the accused is convicted.
3. I am totally unconvinced by the idea
that anonymity ought to be granted to defendants as a matter of
even-handedness between the two sides in a trial. This is a superficial
argument that does not withstand a moment's scrutiny. The reasons
for complainants' anonymity are clear, powerful and all but universally
accepted. The same reason does not, of course, apply to defendants
who do not have the option of whether to litigate once they are
accused. There a vast array of ways in which the system treats
complainants and defendants differently, indeed they are so obvious
they are probably overlooked. Defendants have, quite rightly,
the advantage of the burden of proof, whereby they are to be believed
unless and until the prosecution adduce evidence to make a jury
sure they are not telling the truth. Accused persons have the
disadvantage of being on bail or even in custody while awaiting
their trial. Complainants have the disadvantage that they are
not called to give evidence by their own advocate who can discuss
their evidence with them at length and with whom they will have
formed a working relationship before going into the witness box.
And so on. It makes no more sense to demand defendants' anonymity
to put them on the same footing as a complainant than it would
to propose locking up all complainants whilst they await the trial.
4. The argument about those who are accused,
but never convicted, suffering greatly from the public airing
of unpleasant allegations is much more substantial. Whilst I am
not convinced that, in the Committee's words, "this is an
area where there is a possibility of mistakes being made"
above and beyond any other type of criminal allegations, it is
obviously hugely upsetting to be widely known as having been accused
of, for example, an historic rape. Against the understandable
wish to protect people from such upset, however, I believe there
is an array of practical and principled reasons that heavily outweigh
any argument for change. Those reasons could be listed as the
limits to such a change, impracticality, vindication, the presumption
of innocence and the need for publicity. I will try to deal with
each in turn.
5. It is hard to see where one would draw
the line between offences which would attract defendant anonymity
and those which would not. If the degree of upset is the test,
then murder, especially the murder of children, would have to
be included. What about downloading child pornography, non-sexual
ill treatment of children, mugging pensioners and defrauding popular
charities? Wherever one tried to draw the line there would be
offences within the boundary that would not be especially nasty
criminal allegations and some outside that could be seen as equally
appalling allegations to have to face. This difficulty, I would
suggest, actually arises from the lack of a clear and powerful
reason for granting anonymity in the first place. I have already
touched upon the other matter mentioned in the Committee's earlier
report, namely the idea that allegations of sexual misconduct
are an area where "mistakes" are made. I do not know
the full context of those observations, but it would be very troubling
if the Committee was proceeding on the basis that a woman alleging
rape was intrinsically less reliable than, for example, a young
man alleging assault. It is very hard to see how any system could
be based upon some sort of prognosis that certain categories of
allegations are less likely to be true than others.
6. There is a real problem of how effective
a ban on the press naming an accused person would be in any event.
No law could or would stop a complainant telling friends and family
what they had suffered, should they choose to do so. Similarly,
it is highly unlikely that someone awaiting trial or who is arrested
and interviewed would be able to keep such matters secret from
at least their family, closer friends and, in all probability,
work place. Add to this that people talk to each other and this
sort of allegation would come under the heading of exciting news
and one very quickly has a situation where a normal member of
the public would find that everyone who mattered to them would
know about the allegations anyway. In the case of celebrities
we would be faced with the same situation as when Jack Straw's
son had been involved in supplying cannabis, whereby the media
spent weeks printing large stories about the anonymous minister
next to large photographs of Mr Straw opening town hall extensions.
If so many people know anyway, it may be that those accused, or
rumoured to be accused, are better protected by the world knowing
the truth, printed and published where it can be seen and, if
need be, challenged, than creating a nether world of gossip and
rumour.
7. A similar point concerns the vindication
of those wrongly accused by the widespread news of their acquittal.
To take the two cases that spring to mind, neither Craig Charles
nor the snooker player whose acquittal last raised a public furore
on this subject, seem to have suffered great and lasting damage.
Indeed, their trials received generally sympathetic coverage.
Those against whom these allegations are made are surely entitled
to have the news of their being pronounced "not guilty"
broadcast far and wide.
8. The point about the presumption of innocence
is a more theoretical consideration, but an important one. Those
who are found not guilty are entitled to be regarded as such,
whatever the crime of which they had been accused. Legislation
that sought to protect those who had been acquitted would implicitly
suggest that there was indeed no smoke without fire.
9. The most important objection to the extension
of secrecy in criminal litigation is that it would interfere with
the free and full reporting of what happens in our criminal courts.
Although the reporting of criminal litigation is often sensationalist
and prurient, this is a price well worth paying for all of us
knowing what is being done in our name in the criminal courts.
Time and again, the attitudes of the public to certain offences
and certain defendants has had a significant impact upon the national
political agenda, be it the way in which rape complainants were
(and to a degree, still are) treated when they give evidence or
demands to change the way in which the police and local authorities
deal with known paedophiles living in their area. One may disagree
with the attitude of sections of the public about some such issues,
but if we respect democracy we should not doubt the importance
that such attention is focused on the difficult and fraught business
of how society deals with those accused and convicted of crime.
Any change that seeks to narrow and restrict that right to know
should be resisted unless there is a powerful, clear and overwhelming
need for it; there obviously is such a need to protect the anonymity
of rape complainants, in the case of defendants there is not.
February 2003
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