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Mr. Grieve: I am most grateful to the Solicitor-General for her comments. She has persuaded me. As this discussion has taken place, it has become apparent to me that in the rather odd circumstances that I put forward as a theoretical possibility the defendant would be able to rely on the fact that consent had existed all along and had not been induced by impersonation, so he would not fall foul of the conclusive presumption. I have nothing against conclusive presumptions in circumstances of this type, or against their history. Perhaps I was looking at the Bill too late at night, but it suddenly struck me that the conclusive presumption might have draconian and unintended consequences. I am grateful to the Solicitor-General for reassuring me on that and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 77 ordered to stand part of the Bill.
Clause 78 ordered to stand part of the Bill.
Clause 2
Anonymity of defendant in rape etc. cases
Mr. Grieve: I beg to move amendment No. 23, in
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 24, in
New clause 1—Anonymity of suspects and defendants in certain cases—
'(1) Where an allegation has been made that a person has committed an offence listed in Schedule 3 to the Sex Offenders Act 1997, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and if that person is charged.
(2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely—
(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) in the case of any other publication, the person who publishes it; and
(c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence.'.
Mr. Grieve: We now come to a section of the Bill that we understand to be contentious. It is the Government's intention, as I understand it, to
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remove clause 2 and argue that it should not stand part of the Bill. There has been much discussion and debate—this seems to have been almost the principal topic of the debate foreshadowing this House's consideration of the Bill—on whether there should be anonymity for defendants in rape cases and what the scope and duration of that anonymity should be. Should it be simply for the duration of the charge or last throughout the trial? If there is such an intention, how should the legislation be drafted? The drafting is by no means free of complexity. The House of Lords—following Lord Ackner's suggestion, I believe—inserted clause 2 in what I acknowledge to be a somewhat simplified form. No doubt it was designed to alert the Government to their lordships' concern about the matter and to invite the Government to come up with proposals of their own.
In considering the clause, we must go back to principles. Over the past few weeks, I have discussed some of the issues with Committee members, and I say at the outset that this is not a matter that I find at all easy. The basic principles I find very easy indeed: it is desirable that all aspects of the criminal justice system should take place publicly, which means that defendants and witnesses are publicly identified throughout the court process. As much of the court process as is possible should be open to public scrutiny, as that reassures the public that what they are seeing is prosecution, not persecution, and that things are taking place in a fair manner.
However, we know from example that it is not always possible or indeed desirable to try to achieve that. We know, for instance, that there might be cases involving state security where some of the evidence cannot be given in public, but it is nevertheless in the public interest that there should be a prosecution. Sometimes, the identity of witnesses needs to be protected because they are at great risk either in their work or of being attacked if their identity and place of residence is made known.
In rape cases, we have taken matters a stage further. It is widely acknowledged that the trauma of giving evidence in court is such that it is difficult to persuade victims or alleged victims of rape to come and give evidence about serious criminal offences. Therefore, notwithstanding the basic rule that I have just spelled out, it is in the public interest that such people should enjoy anonymity in almost all circumstances. I do not suppose that anybody on the Committee would want that principle reversed; it was introduced some time ago and it appears to be essential if this serious type of case is ever to get to court.
I shall move on to remarks about the position of defendants. I am aware from having read the House of Lords Hansard that some argue that, in view of the fact that complainants have anonymity in rape trials, it is only fair that the defendant should have anonymity in those trials. I do not agree with that, but I understand the force of the argument, and I suspect if one went outside the House and spoke to members of the public, one would meet people who argued that view forcefully. I do not take that view because I acknowledge, for the reasons that I gave a few minutes ago, that such equivalence cannot always be achieved.
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We do not say that somebody who is tried under the Official Secrets Act must have anonymity simply because some of the witnesses in the trial who come forward to give evidence have anonymity.
That issue focuses my mind on the peculiar problems that rape allegations pose, which appear to fall into several categories. First and foremost, we know that rape allegations have the unique and unfortunate distinction of having an astonishingly low conviction rate—I can think of few other offences that come into that category, although there may be one other. All sorts of reasons can be adduced for that, and we have argued them. There are anxieties that it reflects the fact that many guilty people are getting off, and it is argued that the rules and tests of evidence should be changed—indeed, we are in part doing that in the Bill. As I have said, I am not sure that that will make a huge difference, but I hope that it makes a positive contribution to securing justice in rape trials.
4.15 pm
Nevertheless, we must face the fact that the vast majority of people who have an allegation of rape brought against them are acquitted, as a result of societal changes in the nature of the allegations; as has been highlighted, rapes now overwhelmingly concern not a stranger but parties who are acquainted. Having been acquitted, they are entitled to all the benefits of that acquittal, including, if they do not have other convictions, being regarded as being of good character, and being able to get on with their life.
However, the reality is that many who have been acquitted have their life ruined by such allegations, and in a very few cases, it transpires that the allegations were made maliciously. We face a great problem. That highlights the question whether it would be in the public interest and the interests of justice in such circumstances for defendants in rape trials to have anonymity. In that case, we would have to ask for how long and in what circumstances that would be so, and what exceptions there might be.
It is worth remembering that there was a period of 12 or perhaps 11 years—I can never remember the precise dates on which legislation came on or off the statute book—when defendants in rape trials did enjoy anonymity. It overlapped only slightly with my period at the Bar, but certainly in my first few years—
Mr. Malins: It was 1976 to 1988.
Mr. Grieve: That, indeed, is what I recollect. My only reason for not being specific was that I wondered whether the Act was on the statute book for some months before it was implemented.
I remember seeing rape trials taking place in my early years at the Bar in the 1980s. I certainly was not conscious that there was a great impediment to justice in granting anonymity to rape defendants—until, of course, they were convicted, when, naturally, their anonymity disappeared.
It has been suggested that there may be cases in which anonymity seriously hampers police investigations, because it prevents an opportunity for other people to come forward, as they will not have heard that the defendant is standing trial. I accept that
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that may sometimes happen. That is why I also always accepted that there must be exceptions to anonymity rules when the interests of justice require it. Another example is that of a defendant who does not surrender to bail and goes on the run. It is easy to see that in those circumstances his anonymity should be forfeited for the sake of ensuring his early arrest.
I strongly feel that there are powerful arguments—and they certainly seem to have registered outside the House among the public—as to why defendants should have anonymity. There are then arguments about how long they should have anonymity for. Because of the way that the Bill has come to us from the House of Lords, we are really talking about anonymity between charge and conviction or acquittal.
There are arguments—I gather that the Home Secretary is taking an interest in the matter—that the principal mischief lies not in the trial process, but in the period prior to charge, and I do not think that that period would be covered by the Bill. Perhaps the Committee should consider that, although drafting such legislation could be difficult. I have heard it suggested that the Home Secretary wishes to come up with a formula by which the police agree not to tip off journalists about investigations of individuals suspected of sex offences.
I have no idea whether that approach would be successful or not, but I am not optimistic. I am afraid that there is a long history of the police tipping off journalists—often, I suspect, for reward. It is a scandalous situation, but one that I believe is very difficult to control. The only way to exercise such control would be to restrict publication; the reality with anonymity in any case is that there will always be people involved in the case or close to it, or relatives or neighbours, who know very well that a person is about to stand charge for a rape allegation. That certainly happened in the 1980s; anyone sitting in court would have been likely to find out. However, the absence of publicity was certainly very helpful in enabling someone who had been acquitted to rebuild his life.
While I understand that the Government are unsympathetic to the Lords amendment and wish to delete it, for my part I am broadly somewhat sympathetic to it and would like to see whether there is some way by which the spirit or intention of the clause could be retained.
There are two ways in which that could be done. The first is amendment No. 23 and the second is amendment No. 24. Amendment No. 23 would retain
''a right to anonymity, from initial accusation to conviction''—
so the anonymity would apply beyond charge—
''unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.''
That would make allowance for the exceptions, which I fully acknowledge might arise, either because of a defendant's behaviour—running away, failing to surrender to bail—or because the prosecutor could go to the judge and say, ''This is a very unusual case. We are satisfied that at least four people have now
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made allegations against the defendant. We believe that publicity, because of the nature of his offences, might well attract more. It is an unfortunate matter, but could we please be allowed to reveal his identity?'' I would be perfectly prepared for a judge to perform such a balancing exercise.
The second amendment, amendment No. 24, is an alternative. The intention is that it might provide—although I suspect that because of the way it is drafted it would not provide—the possibility of having anonymity between the time that the investigation commences and an allegation is made, and charge.
I look forward to hearing not only the Government's position on clause 2, but their position on anonymity generally. At the moment, the amendments have been put forward in, I hope, a conciliatory spirit and I hope that the Committee will be able to grapple with them. It is a very important topic.
If we get no joy from the Government on the issue, we may be minded to resist the deletion of clause 2, because it is an issue of great importance. However, I am also willing to listen carefully to what the Minister has to say, and to other Committee members who have arguments to the contrary. I am already well versed in such arguments; I have had an interesting e-mail correspondence with the hon. and learned Member for Redcar, which was published in somewhat truncated form in The Guardian. The arguments that she put forward are valid; I make no attack on their validity. Equally, however, I believe that there are arguments to the contrary.
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