Richard Glover, Senior Lecturer in Law of Evidence, Criminal Law and Public Order Law at the University of Wolverhampton writes.
As has been noted by Lord Neuberger, the President of the Supreme Court, we live in a country committed to the rule of law and central to that commitment is the principle that justice should not only be done, but also seen to be done. That is, court proceedings and a court’s decision should be open to public scrutiny wherever possible.
This important principle has been well aired recently. Newspaper headlines have been dominated by the acquittal of the Coronation Street actor, Michael Le Vell, for a number of serious sexual offences. A debate has ensued as to whether the anonymity enjoyed by complainants in sexual offence trials should also be extended to defendants, prior to any conviction. In terms of principle, the question may be put as – can defendant anonymity be justified, in these circumstances, as an exception to the principle of open justice? I will briefly examine here the strength of two of the main arguments in favour, but contend that the case for extending anonymity to defendants remains unconvincing.
First, there is the argument for ‘even-handedness’ between the complainant and the defendant. That is, it is said to be unfair that, on the one hand, a person can make very serious allegations of rape or sexual assault without their identity ever being revealed while, on the other hand, a defendant’s identity will be known from the outset. This argument for parity of treatment has an attractive simplicity but is, ultimately, misleading.
The complainant and the defendant are very different parties in a criminal trial and there are many ways in which the criminal justice system treats them differently. For example, quite rightly, defendants have the benefit of the burden of proof, which means that they should be believed unless the prosecution can call sufficient evidence to make a jury sure of their guilt*.
The same cannot be said for complainants but, equally, they don’t have the defendant’s disadvantage of either being remanded in custody or on bail, perhaps with conditions as to their movements. So, parity of treatment is not the norm, nor should it be necessarily expected. The anonymity of complainants in trials of sexual offences is a case in point.
It is the norm in criminal trials for the complainant’s identity to be known and, for the sake of open justice, in most cases this is clearly a good thing. However, in trials of sexual offences, the usual advantages must also be balanced against the known and important disadvantages. That is, it is very well-established that victims of sexual offences are often reluctant to report the crime for a number of reasons, e.g. the fear that they won’t be believed or that they won’t be treated sympathetically by the police or the court system.
This was why, in 1976 and 1992, Parliament legislated for complainant anonymity and the most recent Home Office and Ministry of Justice studies have highlighted the continued under-reporting of such crimes and the difficulty in gaining convictions, which also undermines reporting by victims, see An Overview of Sexual Offending in England and Wales and the Criminal Justice Statistics Quarterly September 2013. If a complainant’s identity were to be known, as a matter of course, it is likely that this unsatisfactory position would be worsened.
Of course, defendants do not benefit from the same anonymity and it is sometimes argued that defendants, who are accused but never convicted of a sexual offence, suffer permanent damage to their lives from the public airing of unpleasant allegations and revelations about their private lives. This is the second main argument deployed in favour of defendant anonymity and evidence of Le Vell’s alcoholism and ‘one-night stands’ is a working example. It has been said that he will never be able to throw off the damage that has been done to his reputation. Be that as it may, one may also be left wondering whether the position would have been any better had Le Vell remained anonymous. As the footballer Ryan Giggs found out in 2012, it can be very difficult to keep allegations confidential with an intrusive and global media.
An open and public trial with an acquittal may not be perfect as, unfortunately, suspicions may still lurk in the public consciousness, but it may still be the best means of clearing one’s name publicly. Whatever some people may think, Le Vell was found not guilty by a panel of his peers. It remains to be seen, but had his trial and acquittal remained secret, might information not have leaked out somehow and the suspicions of the truth of the allegations not been greater and persisted longer?
If we put the deficiencies of these arguments to one side and, for the sake of argument, accept that the defendant should remain anonymous until he or she is convicted, there still remain important principled and practical difficulties to be considered.
Where, in principle, should the line be drawn between offences that should attract defendant anonymity and those which should not? Why should anonymity only be preserved for sexual offences? Why should these defendants, in particular, be in a privileged position? What about the offences of murder, downloading child pornography, domestic violence? All these, depending on the circumstances, will cause distress and severe damage to a person’s reputation.
One can certainly sympathise with Le Vell and others, who have suffered considerably from being wrongly accused by anonymous complainants. However, this should not be a reason to depart from the important principle of open justice in relation to defendants. The reasons for complainant anonymity in sexual offences trials, as derogation from open justice, are clear, powerful, widely accepted and can be justified as an exceptional circumstance. The same, it is submitted, cannot be said for defendant anonymity, notwithstanding the very understandable feelings of the defendant.