Friday, 13 September 2013

Secret Justice or Fair Law?

In the light of the recent case of a well-known actor being found not guilty of rape and other charges, the decades-old question of anonymity in rape cases has again risen its hoary head.  In 1976 victims and defendants in rape cases were granted anonymity.  The relevant statute was the Sexual Offences (Amendment) Act 1976.  The purpose of anonymity for victims was to encourage them to come forward when the offence committed against them meant the victim often had feelings of shame and did not want to suffer further indignity of their violation being made public.

The defendant was also originally granted anonymity for the purposes of avoiding stigma for innocent defendants and ensuring equality between complainants and defendants.  In 1988 this provision for anonymity for defendants was repealed. 

There has been much comment that the present arrangement is inequitable.  The defendant can be wrongly accused and even if found not guilty will forever suffer under a cloud of suspicion.  Meanwhile the complainant who has made a false complaint does not suffer any stigma.  This seems inequitable and even unjust.

In 2010 the new coalition government indicated it would look at reintroducing anonymity for the defendant.  It reneged on this because it took the view that there was not enough empirical evidence to justify the reversion to the earlier law.

Recent events, particularly the revelations about the BBC employee Sir Jimmy Savile, demonstrate that when accusations are finally made other witnesses gain the confidence to come forward.  It is argued that anonymity for the defendant would mean those who did not have confidence to bring further accusations against a serial offender on their own initiative would be discouraged from doing so.

The trouble with this situation is that there is not sufficient deterrent for false accusers and the outcome of the Le Vell case shows false accusations clearly occur.  The defendant in that case not only suffers the stigma that the jury might have got it wrong, but also suffered his whole personal life and peccadilloes being paraded to the public through constant media commentary.

This is inequitable, but it seems to the blogger there is no easy solution.  Revert to the 1976 law and we end up with virtual secret courts, which is inimical to the founding principles of British justice.  Allow one party to have anonymity and there is minimal risk to making false accusations.

Rape is a crime, but it is not only a very heinous crime, it is also of its own type.  The victim must have suffered a deep personal violation, different from ordinary injury.  On the other hand, it is often difficult to know whether a crime has been committed.  Due to the often intimate-situations in which these crimes can take place, with no witnesses, it is difficult to prove the crime has occurred beyond reasonable doubt.  Unlike a murder, there is no body.  Unlike a burglary, there is no missing property.  The flipside of this problem means false allegations can be brought too.

One very straightforward way of making the situation equitable and discouraging false allegations is to do away with the complainant’s automatic right to anonymity.  That would restore full open justice and mean that we had reverted to the usual way of prosecuting crimes, whereby allegations of a serious crime could not be made secretly. This would accord with principles of natural justice.  Such a move would not affect the position of children or other vulnerable witnesses.

However, this could deter genuine victims from being willing to enter the witness box for the prosecution.  Our adversarial system, important as it is in reaching the truth and particularly when a criminal act so serious is concerned, is not welcoming to the victim.

This is a situation that must be addressed and far greater minds than this blogger’s should and will cogitate this.  The matter must not be left to rest though, for the current state of affairs is inequitable.  The only solution the blogger can see is whereby both parties retain anonymity, but the defendant loses his right to anonymity if found guilty (as would inevitably be the case on conviction) and the complainant loses their right to anonymity if the jury finds the allegations to be false or at least not provable beyond reasonable doubt.  This may not be the answer, but this is an area that must be looked at and not left to rest.

No comments:

Post a Comment