We must see justice done (more on rape and anonymity)

by Carl Gardner on May 24, 2010

It’s of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. So said Lord Chief Justice Lord Hewart in 1923, quashing a guilty verdict arrived at by magistrates in private with their legal adviser, who had a conflict of interest.

The principle has two aspects. First, the justice system must be visibly free of bias. But second, and more fundamentally, the workings of justice must be seen in the first place. Only if justice is carried out publicly can we know it’s being done fairly. That’s why you can go into your local Crown or Magistrates’ Court any day, if you’re not working, and listen to proceedings. It’s why I think criminal trials should be televised. And it’s why I’m against the government’s surprising new proposal to grant anonymity to defendants in rape cases.

Actually, we should talk about the coalition’s proposal to “restore” anonymity to rape suspects – because we’ve been here before. In 1976 the Labour government legislated to grant anonymity to rape complainants, following the recommendations of the Heilbron Report. It was forced in committee to grant the same protection to defendants. But Margaret Thatcher’s government removed it in 1988 after the Criminal Law Revision Committee had concluded that the argument often made about equality between rape defandants and complainants was not valid “despite its superficial attractiveness”. That reasoning reflected Heilbron’s own earlier view that the right comparison was not between a rape defendant and alleged victim, but between him and other types of defendant. Even so there was an attempt to amend the government’s Criminal Justice Bill to retain defendants’ anonymity; among the majority who voted it down then were five MPs who are today ministers in the new coalition government, Francis Maude, Andrew Mitchell, Gerald Howarth, Sir George Young and David (now Lord) Howell. I hope they remain of the same view.

It’s sometimes argued that naming rape defendants means they’re not treated as innocent until proved guilty. That, though, is a misunderstanding of the presumption of innocence. It’s a vital principle, preventing the state from punishing anyone, for instance by imprisonment, unless a court is satisfied of their guilt. But it doesn’t mean, and never has meant, that nothing adverse should happen to you if you’re suspected of a crime. If it did mean that, no one could be arrested or questioned for any crime, since by definition it’s not been proved at that stage. Nor does it mean allegations must be kept secret.

But if it did mean either of those things – if the presumption of innocence really did require rape defendants to be anonymous – then the same, surely, would go for all defendants. It would apply not just to those accused of sexual or violent offences, but to alleged benefit cheats and drink-drivers. All are entitled to the presumption equally. Such an approach would utterly destroy the essential principle that justice must be done publicly. Our criminal justice system would retreat into secrecy just as the family courts begin to open up, and the absurd result would be that we’d have no idea which former MPs were facing charges in connection with their expense claims – if we knew that any were at all.

People rightly cry out for transparency and openness in criminal justice. Some even do so when, as in the recent case of Jon Venables, secrecy is a matter of life and death. I’m content that there be limited restrictions on public justice, in order to protect lives, to ensure trials are fair, to protect children and to protect rape victims. But public justice is too precious to make any more exceptions than are absolutely necessary. The government should think again.

{ 7 comments… read them below or add one }

1 hatfield girl May 24, 2010 at 21:08

Being secretly accused of anything is a frightening prospect. It’s important that frivolous or spiteful accusers should be pursued for their behaviour too.
.-= hatfield girl´s last blog ..Goodbye to All That =-.

2 Andrew Duffin May 25, 2010 at 10:29

The government should not think again.

It is an outrage against any possible notions of justice, that a frivolous accuser who “cannot be named for legal reasons”, is able to drag a man’s name and entire life into the public arena, with all that that implies about vigilante action, tabloid prurience, and so on, and then even after an acquital and an absolute discharge she still “cannot be named for legal reasons” except in the most egregious and easily-disentangled cases.

Sauce for the goose, and all that.

Anonymity for both sides, if we wish, because of the nature of the crime and the difficulty of knowing the events.

Or no anonymity, if we insist that justice must be seen to be done – I have sympathy for this view.

But anonymity for one side, not the other? Never in a million years could I regard that as just or supportable.

3 Aaron May 25, 2010 at 11:00

Well, I’m no fan of the new administration, no defender of the guilty and I am certainly not about to advocate one rule suits all, but this is a tricky one.

In the public, or at least the media, eye often just the fact that someone is accused is tantamount to a guilty verdict. Arguably therefore, in a case that is likely to attract media attention and to publicly hold the accused up as a guilty or stigmatised party, perhaps that individual should have some right to anonymity until after legal proceedings have taken place. Otherwise, that stigma is likely to remain attached, no matter what the eventual judgment.

The case of those politicians accused following the expenses scandal is a good illustration here because the weight of public opinion seems to have already found these individuals guilty without so much as an opportunity for them to demonstrate their case. It’s unlikely that a contrary verdict would do much to change anyone’s minds – and perhaps wouldn’t even be reported. Okay, perhaps that’s an issue of media representation, but unfortunately that is something that needs to be factored in.

The question is, assuming they are innocent, can anyone be truly regarded as innocent until proven guilty if the public stigma of their proposed crime, or that combined with their public standing, continues to stay with them beyond having been proven innocent of said crime? How important is that presumption, beyond the law courts and within the wider public? And is that presumption more important than fully, publicly demonstrative justice?

Whilst it’s clear that justice must be done and be seen to have been done, it also seems clear that there is a fundamental conflict in these cases and that in order to protect the innocent, the presumption of innocence and the protection of the reputation of the innocent would have to be overriding. Other safe-guards would have to be in place to ensure that the case is heard fairly and openly, within those restrictions.

Perhaps there isn’t an ideal solution, perhaps I’m just trying to avoid the phrase “in these days of 24-hour media, ‘trial by blogging’ and the internet” but I can’t help thinking how many times I’ve seen someone exposed to an utterly one-sided execution by media that seems to have attached itself, leach-like in a way our legal system could never hope to compete. To be is to be perceived and those who write the headlines own the minds.

Just a thought anyway…

4 David Stourton May 25, 2010 at 14:45

The logic of Carl’s argument is surely that there should be no anonymity in rape cases, for either the complainant or the accused.

I cannot see the justice in one side having anonymity but the other not. That position assumes that the complainant is genuine and thus worthy of protection, whereas the accused is not.

Shouldn’t they be treated the same? Either anonymity for both, or for neither. I think I would prefer neither.

5 James Medhurst May 25, 2010 at 15:23

If the only argument for change is that suspects and complianants should be treated in the same way then I am afraid I do not follow the logic at all.

As I understand it, the purpose of having anonymity for complainants is that, otherwise, they may be deterred from coming forward with the effect that justice is not done. Were it the case that anonymity for suspects would similarly improve justice, I would support it. But it is clear that it would not. Identifying suspects does not dissuade them from defending themselves.

In justifying anonymity for suspects, the main line of argument appears to be that mud sticks and, in particular, that media reporting of a rape trial is more damaging than local gossip, which would exist in any event. If so, the only meaningful comparison is with people accused of other offences and a case has to be made as to why rape requires a special level of protection. At the moment, I am entirely unable to see how this case has been made out.
.-= James Medhurst´s last blog ..British Airways strike injunction =-.

6 Innocent Abroad May 27, 2010 at 22:00

Doesn’t research show that the number of frivolous or mischievous allegations of rape is virtually nil, but that a large number of women who are raped are unable to produce the evidence because it is, so often, her word against his (and neither of them sober).

As I’ve said before, we have a choice of evils – either we abandon the presumption of innocence, or we accept that the conviction rate will remain appallingly low.

As to the government’s proposal, it is surely for brainstorms like this that we have a Revising Chamber.

7 awbMaven August 22, 2012 at 09:42

“But public justice is too precious to make any more exceptions than are absolutely necessary.”

I would argue that keeping an accused’s name anonymous is “absolutely necessary” and should be one of those exceptions just as it is with the alleged victims name.

Either both are anonymous, or neither.

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