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.