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  In 1988 this provision for anonymity for defendants was repealed.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.

Reverting to the Whigs' History?

A Reversion to the Whig Historians and their View of Progress?

Michael Gove’s determination to restore history as the genuine teaching of our island story should be applauded.   In the teeth of resistance from left wing teachers who see controlling history as a means of preaching a politically correct outlook, he is fighting to ensure our next generation learns the narrative history that helps us understand who we are and invigorates patriotism.

The ideologues who resist this seem to think that the next generation will be inspired to virtue by having the guilt piled on about who they are.  Generations have been taught a distorted view of this nation as being an oppressive and imperialist force in the world.  To give the benefit of the doubt to the education establishment perhaps they believe that this will lead to future generations of virtuous citizens.  More likely it will lead to an embittered nation that sees itself as guilty without any values to live up to.

Far better to teach the truth – that Britain has been, for the most part, a force for good in the world.  When the facts, rather than politically correct interpretation, are taught then that conclusion will be difficult to resist.  Great Britain abolished slavery and the Royal Navy policed the seas to impose a ban on slave trading.  Great Britain defeated Nazism and the Kaiser, also saving Europe from Napoleon’s attempt to create one polity for the whole continent.

When we are taught what we have done in the world for good, this will act as an inspiration to true patriotism and as an inspiration to live up to those values.  It does not mean distorting the truth to give an overly rosy picture of our nation’s history, in the mould of some despotic regime.  Rather, it means teaching what actually happened rather than interpreting facts through the prism of a left-wing, semi-Marxist outlook that sees history as being the struggle for power between the oppressor and the oppressed.  Teach history as a narrative and that interpretation crumbles away.  This is why the Left wing ideologues fear Gove’s reforms for the teaching of history so much.

It is naïve though, to assume that even with the restoration of teaching history as a narrative all interpretation can be avoided.  The great temptation will be to adopt a Whiggish view of the inevitability of progress.  That would be a mistake and just as damaging as the Left Wing view of history now predominant in our nation’s schools.

If the history of our nation teaches us anything at all, it is that progress is not inevitable and history can take wrong turns and go down cul-de-sacs.  The Commonwealth of Oliver Cromwell, when two great institutions, the Monarchy and the House of Lords were abolished is the most glaring example of this.  This was not progress, as demonstrated by the fact that both those institutions are still with us in the Twenty-First Century and certainly the former is held in higher respect by the public than the House of Commons of which Oliver Cromwell MP was a member.

Further the possibility of decline is demonstrated all around us:  Great Britain now is threatened with dissolution thanks to the mischief of Alex Salmond.  Its world stature has declined, its empire gone and its economy is smaller.  Mass immigration has taken its toll, diluting our common values and leading to the corrosive relativism of multiculturalism that only now the political class is waking up to.  Politicians are now more removed from the public than ever before, moving in a separate world, with different values and ideas from the people who vote them into power.  Progress is by no means inevitable and there is always a high risk of decline.

No, if history teaches us anything at all it is that when we looked back we took our greatest leaps forward.  The introduction of trial by jury under Henry II came from a looking back to Anglo-Saxon twelve thanes of the Wapentake.  The same king’s development of common law relied on case law, which looks to precedent, reinterpreting it for each new situation.  The Magna Carta was a reassertion of existing liberties and rights.  Parliament itself looked back to Anglo Saxon times.  Simon DeMontfort did not think he was innovating when he fought Parliament’s cause against Henry III, rather he thought he was fighting for ancient rights and privileges. 

It is worth mentioning though that unlike common law, dominated by precedent, only Parliament violates this principle of looking back because of its power to pass statutes, laws that can be entirely new and overrule common law.  Precedent and conventions dominate our constitution and our Parliamentarians would do well to respect precedent, rather than fall into the temptation of the novel and innovative.  With the power to pass Acts of Parliament it can be seen why the political class falls into this temptation.

Our rights and liberties rely on the past for their legitimacy.  We do not have to call on the flimsiness of abstract theory, with all the innate dangers that involves.  We have precedent and we can rely on it because as a nation we have on the whole avoided disruptive revolutions. 

With a legal system that relies on precedent and an island story that demonstrates that all our greatest moves forward were through looking back,  it seems that the Whiggish view of history, with its emphasis on the inevitability of progress will not stand up to the facts.  Rather, perhaps by restoring a narrative view of history we will see the development of a Tory view of history that emphasises change only working in the context of respect for the past.  Forgetting the past can lead the nation into error.

If history teaches us anything at all it is that we do best to learn from the past and not forget it.  That is why the teaching of history is so important.