Towards the end of last year and throughout this year there has been a number of high profile cases regarding celebrities who had been accused of historic sexual offences. In light of the Jimmy Savile enquiry these cases reached a high prominence in the media and on a number of occasions Nick Freeman was asked to comment on them both on television and within newspapers.
As a regular and respected legal commentator Nick was also contacted by Sarah Harrison who was writing an academic paper regarding the anonymity of defendants in sex cases in light of the suggestions made by Maura McGowan, the Chairwoman of the Bar Council for England and Wales. Sarah was interested in contacting Nick following his comments in the media and he made time to have a number of telephone conferences with her and help in any way he could.
Nick was delighted to receive an email from Sarah stating that she had completed the paper and attached a copy which has now been made available for publication. You can read Sarah’s paper below and also download a copy by clicking here.
In February, Maura McGowan, chairwoman of the Bar Council of England and Wales, which represents lawyers, suggested defendants in rape and sex cases should get anonymity unless convicted. She said it was justified because sex offences carried “such a stigma”, Is there a case for a change in the law or would this represent an unacceptable restraint on the media’s right to publish?
The Sexual Offences Act 2003, in its own words, is “An act to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes.” (Government Legislation, 2003) It includes rape, assault by penetration and sexual assault for both children and adults.
Currently under the Sexual Offences Act 2003 and the Youth and Criminal Evidence Act 1999, (Quinn, 2013) there are restrictions involving the publication of details surrounding victim’s identities. Once someone has made an allegation of a sexual offence they automatically receive lifetime anonymity. As the Jaw currently stands, defendants in these cases do not receive the same anonymity.
There have been a lot of high profile cases in the media surrounding this topic where both the accused has been found guilty and others have been acquitted, such as the cases involving Jimmy Savile, Michael Le Vell and Peter Bacon. When the coalition government first came into power, they announced that they were going to revisit the idea that defendants in these cases should also receive anonymity.
There are many ethical issues surrounding this idea of defendant anonymity due to the stigma that is attached to the accusation (Freeman, 2013). If the defendant is acquitted of the accusation, their name has still been discussed in the media and sometimes the stigma may not go away, however, the alleged victim, unless confirmed to have falsified the allegation, would continue to receive lifetime anonymity.
If there was defendant anonymity, it may cause additional difficulties in trying to get victims to come forward and report the crime. It may also be seen to give a message that victims on this crime are more likely to be making a false accusation (Russell,2013).
The role of the journalist has a large part in this debate as they are the main source of information for the public. A journalist fights for ‘freedom of speech’ and uses ‘absolute privilege’ under the Defamation Act 1952 to be able to report these cases whilst already being restricted in not revealing the identity of the victim. If further restrictions were to be made regarding the defendant, it may make it too hard to report fairly and accurately. Knowing the defendants name is currently seen as being in the public interest.
There are many different ways of looking at the advantages and disadvantages of a defendant having anonymity. The disadvantages would be that victims may not come forward because they are not aware that someone else has been through the same thing (Wynn, 2013). Against that, advantages would be that if the defendant is acquitted, then their name would not have been published across newspapers different forms of media. turning their life upside-down and for no reason.
The complainants in these cases become associated with a stigma of being sexually assaulted but that stigma also transfers across to the accused as well (Freeman, 2013). Nick Freeman, a criminal defence lawyer has worked on these cases for many years and believes that up until the point of conviction, the defendant should be allowed anonymity to protect their lives should they be acquitted.
As we have seen in many cases, such as Michael Le Vell and Peter Bacon, a call for anonymity would have helped these people, who have been acquitted, to keep a private life.
Michael Le Vell, is someone in the public eye and with that being the case, his trial very quickly became big news over all media outlets. The actor was scrutinised and all of his personal details were reported during the case including him being a heavy drinker (The Telegraph, 2013) and being temporarily suspended from his job. The reports also say how he was having marital problems (The Telegraph, 2013). All of this private information was laid out for the public to view and, although the publications are legally sound and abide to court reporting rules, Mr Le Veil can still find himself subject to abuse.
“Being falsely accused has devastating life consequences”, believes Freeman (2013), “We hear of people committing suicide, families who break down and vigilante groups who target the wrong person.” Unless people are well known, like Michael Le Yen, (Freeman, 2013) normal people would only get a few lines in the paper to say that they have been acquitted if anything at all, If a journalist has reported on a hearing, even if it goes to crown court, it may not be followed up by the publication (Nurse, 2013).
This can be dangerous, as if you publish a hearing in a couple of paragraphs and then don’t follow up the case, although the media is covered by ‘absolute privilege) as a defence against defamation, the person who they have ‘named and shamed’ still has to defend his name. This has lead to angry relatives calling the media outlets to rectify this themselves (Nurse, 2013), even though the damage to the accused reputation has already been done.
If a defendant is entitled to remain anonymous, the arrest could still be reported.
At least one hundred lives a year can be adversely affected by a false allegation (Freeman, 2013). On average there are two men every week who are falsely accused of rape. These men are currently not entitled to any protection and these sorts of crimes are leaked to both the local and national press.
There have been cases were a headmaster of a school has been accused of rape. (Freeman, 2013) He was suspended and eventually lost his job. On the night in question he and the alleged victim had gone to a hotel where they where heard by the hotel porter to be having sex with the woman saying “Give it to me, baby!” and because of this the case was dropped but the damage to the headmasters name and reputation had already been done.
When a soap star was accused of sexual assault, the case was dropped and the actor acquitted after the evidence was proved to be not true. All the defence needed to do was access the alleged victims Facebook page. However, the man still lost his acting contract because of the allegation and now drives a van for a Jiving (Freeman, 2013).
Defendant anonymity was originally granted under the 1976 Sexual Offences Act but was later removed in 1988 under the Criminal Justice Act. It was originally given to defendants as well as complainants to protect innocent defendants from the stigma. The Coalition government were going to look at the idea of returning this to the act, the “proposal was subsequently dropped on the grounds that there was insufficient reliable empirical evidence on which to base a policy decision on providing those accused of rape with anonymity.” (Home Affairs, 2012, 1)
This does not change the debate. According to the Home Affairs (2012,5) document, “Lord Ackner moved a clause that would have granted defendants the same right to anonymity as complainants, saying that he had heard nothing to suggest that during the 12 year period when defendants had previously been entitled to anonymity, it had worked to the disadvantage of justice.”
This view is also something that is shared by Freeman (2013) as he is unable to see how giving defendant anonymity could hinder the course of justice. Although the government agrees (Home Affairs, 2012, 6) that “sex crimes do fall ‘within an entirely different order’ to most other crimes” and it was requested that “the anonymity of the accused be protected only for a limited period between allegation and charge. 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.”
Cases like Peter Bacon, who was acquitted of rape after only 45 minutes, is an example of how defendant anonymity would be of good usc. After Mr Bacon’s trial his solicitor read a statement (Daily Mail. 2009); “This case seriously calls into question the lack of anonymity for people like Peter, who have been wrongfully accused of rape, and who are ultimately acquitted.”
Mr Bacon ended up changing his name and identity to try and leave the trial behind him (Victoria Derbyshire, 2009). He said on a radio interview that even though he has been acquitted he is still associated with the clime. He ended up leaving the country to try and start fresh.
Support organisations for victims of these attacks, such as Rape Crisis, believe that the defendants should be named, (Russell, 2013) as they are concerned that if the defendants in sexual offences are singled out it would reinforce that women who reported these offences would be lying. Although the Crown Prosecution Service figures show that less than 1 % of allegations are false, a 2005 amnesty poll confirmed that people are more likely to disbelieve a victim of rape then they are of another type of crime (Russell, 2013).
If a defendant is named, there may be other victims who could come forward and strengthen the case against them, (Wynn, 2013) like in the Jimmy Savile case. By seeing that someone else has gone through the same, thing it could encourage others to come forward as well. The police often have issues wit}, victims of sexual offences coming forward due to the victim blaming themselves (Russell, 2012) and the shame that they often feel, which plays a big part in women not disclosing what has happened to anyone. However. sexual offenders generally have more then one victim (Wynn, 2013) and ifthere is enough evidence it will go to court which is why it is important for people to come forward straight away.
Across England and Wales (Russell, 2013), 85,000 women are raped every year and only 15% of these women will go to the police. Even less are successfully convicted. If defendants were to be provided with anonymity, there would have to be justification to why they would be given special treatment and proof that it would not hinder the course of justice. It would also need to be offset against the damage that it could do to the victims.
The government did reject the arguments for a new clause (Home Affairs, 2012, 6) for all of these reasons. They also state when looking into the idea further, “newspapers give a great deal of coverage of the opening of a trial with full details of the defendant, but by the time the trial ends, if the defendant is acquitted it has ceased to be newsworthy and the acquittal is not reported.” ((Home Affairs, 2012, 7)
For journalist’s, if the defendant was granted anonymity, it wouldn’t change much, (Nurse, 2013) A better story may be found with better details, once a conviction has been made. Even if the story was reported before a conviction it would still be able to be followed but without naming either side. This would allow any defendants who are acquitted to continue their life without interruption fear. (Freeman, 2013) If the defendant was later found to be in court again for the same offence it would be down to the judge’s discretion whether the anonymity was lifted, much like it is for reoffending youths under the Children and Young Persons Act.
“The media is obsessed with the cases where a woman has been lying” in regards to being sexually assaulted or raped (Russell, 2012) when actually only “15-20 cases a year are confirmed to have been false allegations.” The media also seems to imply that it is also the woman’s fault sometimes, such as in the Peter Bacon case (Daily Mail, 2009). The alleged victim was described as “known for her flamboyant outfits in court” and said to have been a “self-confessed ‘recreational binge drinker.
In conclusion, there may well be a cause to change the law for the defendants who are acquitted as the effect that the stigma has on their life after the trial is over seems to stay with them forever, even to the point that some have to create a new identity for themselves (Victoria Derbyshire, 2009) or committed suicide (Freeman, 2013).
Once the defendant has been found guilty the name could be released to the media and other victims could then come forward if this then gives them the courage to do so (Freeman. 2013). If it was simply a case of weighing up the advantages and the disadvantages for this argument then there would be more advantages to providing the defendants anonymity then not.
The reporting of these court cases would still be able to go forward in the same way that other cases are reported when you are not able to identify all the parties due to jigsaw identification on a vulnerable person as included in the Contempt Of Court Act 1981. The journalist would therefore be largely unaffected.
By the defendants being given anonymity, it is unlikely to affect the willingness of victims coming forward (Russell. 2013). and so there would be no logical reason to not have it. It would also provide a more equal level for both complainant and defendant.
You can download a full copy of Sarah’s paper, including all her academic references and bibliography by clicking here.