The Times/Kingsley Napley Student Advocacy Competition

18 July 2016

The Times/Kingsley Napley Student Advocacy Competition poses the question “is it time to give anonymity to defendants accused of rape and other sexual crimes?” As a paralegal in the criminal department at Kingsley Napley, I naturally have an interest in this polarising topic. It has the makings of an excellent debate and I am little jealous that I don't qualify to participate. The recent CPS decision with regard to Sir Cliff Richard provides an opportunity to comment on this intriguing debate.

Due to “insufficient evidence to prosecute” the CPS have decided to take no further action in relation to the historic child sex offence allegation made against Sir Cliff Richard. Unsurprisingly, this attracted intense media speculation, but should we, the general public, ever have known about this allegation? Before you answer, take a moment to remember that his house was raided by the police on live television, despite him not being charged or arrested. What if that had been your house or your name on the front of the papers?

Once an allegation has been made the Sexual Offences (Amendment) Act 1992 s.1(1) provides lifetime anonymity for complainants in sex cases. This principle was first suggested by the Heilbron Report in 1975 as it was recognised that publicity may be “extremely distressing and even positively harmful”. So while complainants enjoy anonymity from the outset, potential defendants have no such luxury. Given the lengthy sentences of sex offences, the stigma of such an allegation and the damage that an allegation can do a person’s reputation, family and future prospects it is highly likely that an allegation could be equally “distressing and harmful” to the potential defendant.

The courts have the power to impose reporting restrictions on a case by case basis, balancing Articles 6 (fair trial) and 8 (private life) of the European Convention on Human Rights against Article 10 (public interest). Such an approach is welcomed as the judge will be able to assess most, if not all, of the relevant prosecution evidence and make a reasoned judgment on the competing Articles. This decision can also be revisited as the circumstances of the case change.

The court’s power is only relevant post-charge and would not assist those in Sir Cliff’s position. At the pre-charge stage, arguably when the evidence is at its weakest and the defendant needs protecting the most, there is no protection. It is at this stage that I argue defendants should be given anonymity. Until a court is in possession of the relevant facts and is able to make a reasoned judgment, a defendant should benefit from the same protection as the complainant(s). The time period from an allegation being made to a decision on charge varies from case to case (22 months in Sir Cliff’s case). All the while the defendant is left in limbo, could lose their job and their friendships and familial and intimate relationships could be severely affected. Even if charges are not pursued, the stigma of such an allegation will hang over the individual, after all, mud does stick.

I note that the rules are different if an allegation is made against a teacher by a pupil. Here reporting restrictions would be in place to protect the teacher’s identity (see the Education Act 2011 s.13). Whilst this Bill was being debated by Parliament it was noted that false allegations “can destroy their career, even their marriage and family relationships [I would also include all intimate relationships].” Surely these arguments apply equally to all individuals where a sex allegation has been made against them.

Any justification for granting anonymity would also have to address the wider argument of why this debate focuses solely on sex offences. Other offences, for example murder, attract even greater stigma and do more damage to a person’s reputation. Yet anonymity for defendants in these cases is rarely suggested.

As these points show, it will clearly be an interesting debate and I look forward to hearing what the entrants have to say on the matter.

Blog by Carl Wheeler, Paralegal in the Criminal team.

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