The standard practice in sexual offence cases is that the victim will have anonymity for life unless they decide to waive that anonymity. This anonymity is provided for in the Sexual Offences Act 1976 which originally was in relation to rape cases only but has since been extended to cover other sexual offences. Over recent years there have been a number of high profile cases and investigations, some leading to prosecutions and/or convictions and some leading to no charges being brought. Irrespective of the outcome of the investigation the name of the alleged perpetrator was made public and could be printed in media articles.
In 1976, the Sexual Offences Act was introduced and provided anonymity for both victims and defendants in rape cases. In 1984 a report from the Criminal Law Revision Committee was published which stated that “the argument about equality between rape defendants and complainants was not valid “despite its superficial attractiveness.” This report led to Parliament repealing anonymity for defendants in the Criminal Justice Act 1988. Since this repeal the topic has been debated on several occasions in Parliament and most recently the Government said in 2010 that they would be once again extending anonymity to defendants in rape cases. However, following an assessment of the evidence on the matter, it concluded that there was insufficient reliable evidence to justify a change in the law.
The current law is that there is life-long anonymity for a victim of a sexual offence unless they decide to waive that anonymity but a defendant can be named from as early as the date of arrest. There may be reporting restrictions placed on the specifics of the offence and the circumstances of the case, but the defendant can still be named.
As a result of what is considered by many to be an unfair stance against accused perpetrators, a petition has been launched which is spearheaded by FAIR (Falsely Accused Individuals for Reform). Their aim is to protect the reputations of all innocent suspects whether well-known or not from the lasting stigma of a false sexual allegation. This campaign has received backing from both Sir Cliff Richard and Paul Gambaccini. FAIR is made up of a group of individual supporters, some of whom have been falsely accused of sexual offences and are now campaigning for law reform.
As with any petition, if this obtains 100,000 signatures then Parliament will consider debating the topic. A check of the petition at the time of writing indicates that the petition is only just over a quarter of the way to hitting this mark (27,814). The deadline for reaching the required figure is 30 November 2019.
The government issued a response to the petition on the 23 July 2019 stating that: “the government believes that there should, in general, be a right to anonymity before charge in respect of all offences but that there will be exceptional circumstances where there are legitimate policing reasons for naming a suspect…A legitimate policing purpose to disclose the name of the suspect may include circumstances such as a threat to life, prevention or detection of a crime or where the police have made a public warning about an individual. The naming of an arrested person before they are charged must be authorised by a chief officer who must also consult the Crown Prosecution Service.”
Following a number of high profile cases several alleged perpetrators have been named in the media but have not been charged of any offences following a lengthy police investigation, most notably involving Sir Cliff Richard and Paul Gambaccini. Police took almost a year to announce that Paul Gambaccini would not face charges as there was insufficient evidence to prosecute him, despite the fact he was named straight after he was arrested in 2013. Similarly, Sir Cliff was named after his Berkshire flat was raided in 2014 and he was forced to publicly deny the widely circulated false allegations before police confirmed he would not be charged in 2016. Following the conclusion of the investigation against Sir Cliff he sued the BBC and in July 2018 was awarded £210,000 in damages for their media coverage of the raid on his house during the investigation.
The repeal of anonymity for defendants of sexual offence cases was made following a consideration that the fairness comparison should not be made between an alleged perpetrator and an alleged victim, but between a rape defendant and a defendant charged with another serious crime. It is further argued that there are already protections in place for defendants, such as the rules on reporting that restrict what can be reported during a trial, although not restricting the identity of the defendant being reported.
Those in favour of reform disagree with the above on the basis that in allegations of this nature “mud sticks” in comparison to allegations made in respect of other crimes. It is also felt that the argument that a rape defendant should be compared to other defendants is flawed as victims in other matters do not receive anonymity.
One suggested compromise could involve providing anonymity of defendants in sexual offence cases, with a judge being able to make an exception and name the defendant if this were in the interests of justice, for example to help identify other potential victims, particularly in cases of historic child sexual abuse.
The difficulty with this is that now social media is a large part of society people are encouraged to “name and shame”, however this goes both ways as can be seen in the Ched Evans matter. This was a case where a young woman woke up naked in a hotel room with no memory of what had happened to her. The victim had never alleged that she was raped and both men admitted to having had sex with her but that they reasonably believed that she had consented. The prosecution argued that she could not possibly have consented as she was too intoxicated. McDonald was acquitted whereas Evans was found guilty and sentenced to five years imprisonment. The Court of Appeal later quashed the conviction and ordered a retrial. Following the retrial, Evans was found not guilty.
Within minutes of the not guilty verdict many took to social media to condemn the victim on the basis that Ched Evans had been named from the outset, served a prison sentence and lost his football career. The victim was named and abused on social media. Whilst it is an offence to name a victim who has anonymity, people are still doing so. Many campaigners are concerned that this will affect reporting of sexual offences particularly given that the latest official figures issued by the Rape Monitoring Group indicate that the reports of rape have risen but that conviction rates have decreased.
Others were quick to point out that a not-guilty verdict does not mean a victim lied, but that the alleged offence could not be proven beyond reasonable doubt.
Earlier this year and during his time as Justice Secretary Robert Buckland suggested that the anonymity of suspected sex offenders and others accused of serious crimes should be respected until they are charged, if they have a reputation to protect. This in itself would bring further debate and uncertainty as to who might be deemed as having a reputation to protect and who does not.
It is clear that this is a topic that is going to be debated for years to follow. As it stands it does not appear that the legal position will be changing any time soon with time almost running out for the petition to reach 100,000, and with the previous Government making promises to extend anonymity only to go back on that promise following investigations. However, in the present days of social media, the concept of anonymity and the ability to maintain it is coming under serious threat.
Lauranne Rawcliffe
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