Should anonymity be extended to
the accused?
72. We have identified four arguments against any
extension. First, we were reminded that the general principle
is that justice should be open, "with free and full reporting
of what happens in our criminal courts".[103]
This implies that anonymity should be the exception rather than
the rule. Secondly, it is said that, whilst there are strong public
policy reasons for granting anonymity to complainants in sex cases
(i.e. to encourage victims to come forward), the same reasoning
does not apply to the accused.[104]
It is therefore suggested that there is no strong case for extending
the restriction any further. Thirdly, it is argued that persons
accused of sexual crimes should not be treated any differently
to those accused of other crimes.[105]
On this point, Professor Liz Kelly states:
"The idea that those accused of sexual crimes
should be privileged can only be sustained if one takes a position
that either these crimes are of an entirely different order than
any other and/or that there is a far higher rate of 'false accusations'."[106]
73. Fourthly, it is suggested that anonymity for
the accused would undermine the police's ability to investigate
sexual crimes.[107]
Several witnesses said that one of the advantages of publicising
the identity of the accused is that other victims, of similar
offences by the same person, will often come forward to give evidence.[108]
Witnesses to our inquiry have also argued that the concept of
achieving equality between the parties is superficial.[109]
74. Other witnesses, however, were in favour of extending
anonymity to the accused in sex cases. This included the Metropolitan
Police who expressed support for a limited anonymity provision
in cases involving children.[110]
We identified four arguments in support of the principle. First,
there is the equality argument. It is said that we have an uneven
playing field because the complainant has anonymity but the accused
does not.[111]
The implication is that the accused is placed at a disadvantage.
Secondly, it is suggested that because of the prejudicial nature
of sex offences, the accusation alone can have a devastating effect
on the accused—whether or not it is proved to be true. Publicity
can therefore be ruinous to the individual, even though he may
be acquitted of the charges.[112]
The Metropolitan Police believe that publicity is particularly
damaging in sex cases involving children. It states (without further
explanation) that "current research indicates that between
5% and 7% of persons arrested for child abuse related offences
commit suicide".[113]
The third argument is that publicity can inflame public outrage
and disorder, which sometimes leads to threats or attacks against
the accused.[114]
Fourthly, it is suggested that anonymity for the complainant increases
the risk of false allegations[115]—a
danger which was also recognised by the Criminal Law Revision
Committee back in 1984.[116]
75. In addition, the Criminal Bar Association provides
a counter-argument to the concern about undermining police investigations.
It points to the fact that the anonymity provision for complainants
does not offer absolute protection because the restriction can
be lifted by the court in appropriate circumstances. A similar
proviso could therefore be incorporated into the reporting restriction
for the accused (as was the case in 1976).[117]
76. On balance, we are persuaded by the arguments
in favour of extending anonymity to the accused. Although there
are valid concerns about the implications for the free reporting
of criminal proceedings, we believe that sex crimes do fall 'within
an entirely different order' to most other crimes. In our view,
the stigma that attaches to sexual offences—particularly
those involving children—is enormous and the accusation
alone can be devastating. If the accused is never charged, there
is no possibility of the individual being publicly vindicated
by an acquittal.
The scope of anonymity for the accused
77. There are three levels of protection which could
be afforded to the accused in sex cases. First, anonymity could
be limited to the pre-charge period, as favoured by the Metropolitan
Police. Secondly, it could apply from charge to conviction, as
was the position in 1976 for defendants in rape cases.[118]
Thirdly, it could apply to both the pre-charge and post-charge
period, i.e. from allegation to conviction.
78. In our view, there are obvious limitations with
the second option. If, as is often the case, the identity of the
accused has been publicised before a charge is brought, then any
post-charge reporting restriction would be meaningless. The first
option offers only limited protection.[119]
For those who are charged, but not convicted, the post-charge
publicity may have a devastating and possibly permanent impact.
We understand that anonymity for the accused before charge is
already recommended in guidance issued by the Association of Chief
Police Officers.[120]
However, even the Parliamentary Under-Secretary in the Home Office,
Hilary Benn, recognised that suspects' names can still find their
way into the media[121]—as
happened recently in the case involving Matthew Kelly.[122]
79. Only the third option offers full protection
to potentially innocent individuals who are accused of sexual
offences. This, however, would impose a major restriction on the
free and full reporting of criminal proceedings and raises difficult
questions about the extent to which the public have a right to
know that someone has been charged, but not convicted of a crime.
Hilary Benn added that:
"if the person is not named and is then acquitted
then no-one will ever know…whether other people might have
been able to come forward in those circumstances and provide information
which was relevant to the case."[123]
80. We therefore recommend that the reporting
restriction, which currently preserves the anonymity of complainants
of sexual offences, be extended to persons accused of those offences.
We suggest, however, that the anonymity of the accused be protected
only for a limited period between allegation and charge. In our
view, this strikes an appropriate balance between the need to
protect potentially innocent suspects from damaging publicity
and the wider public interest in retaining free and full reporting
of criminal proceedings.
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