Could anonymity for the accused help the Prosecution?

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Introduction

On 6th February 2014 Bill Roache was acquitted of all the charges that he faced. Inevitably, this revived calls for anonymity of the accused in sexual offences until charge/conviction (take your pick), and not just from Christine Hamilton.

Here is an overview of how the law on anonymity for complainants works and a piece by Mark George QC giving a good summary of some of the arguments for and against anonymity for defendants.

Disclaimer

Frankly, I doubt that Bill Roache cares two hoots what I say about him, but just in case (and for anyone else reading) I fully accept his acquittal and happy to state he is innocent of all charges. This isn’t about his case (or anyone else’s for that matter) but a general thought about the issues of anonymity.

Thoughts on anonymity 

One of the arguments against anonymity for defendants (and for many the main one) is that that would stop other victims from coming forward. I’ve never found this particularly convincing, for various reasons.

The overwhelming majority of rapes (and other sexual assaults) are committed in the ‘home environment’ (extended family or partners) where discrete inquiries of other potential complainants would be made and, in any event, the defendant would probably not be named because of the familial relationship. This argument just perpetrates the ‘rape myth’ that rapists are big bad men waiting to jump on you in the street whereas in actual fact you are far, far more likely to be sexually assaulted by someone you know.     

Is it effective? The vast majority of cases where there is a news report there won’t be any reporting until the trial, by which time it is too late (even if it’s the rare case that attracts more than a few paragraphs in a local newspaper). 

But does it matter if people are named? In an ideal world it wouldn’t be a problem – we would take a not guilty in the way we’re supposed to and treat the person acquitted as being completely innocent. But whilst the newspapers toe that line, reluctantly (for fear of libel) one look at the internet shows that there is an element of scepticism (to put it very mildly) about some acquittals.

Of course, the number of malicious allegations are tiny. The normal range is given as 0.5-2% (see here and here) which, to me, seems if anything on the high side. At least if you’re looking at cases that go to Court and end in a trial or guilty plea, then my own view is that the number of such allegations is smaller than that. But even take the higher figure of 2%, this still means that people who are factually guilty are being acquitted. That’s not a bad thing, it shows the system works, but the system breaks down when there’s widespread ignoring of a not guilty verdict (this applies to all offences of course, not just sexual ones).

Is it counterproductive?

But is it the case that, whilst it may be damaging to some defendants, there is no real harm to the Prosecution with the current position? One thing that struck me with the Bill Roache trial is the way that the defence did not just raise the Jimmy Savile ‘issue’ to deal with it, but used it to their advantage – “the police investigation had been “infected” by the abuse allegations made against Jimmy Savile and other celebrities. The “spectre” of Savile loomed large, said Roache’s barrister, Louise Blackwell QC.” (this argument also featured in the Dave Lee Travis trial).

Normally, the fact that there are multiple complainants is something that the Prosecution are keen to stress. The general argument being that it is less likely that three people are incorrect in their evidence (whether maliciously or otherwise).

What I’m wondering is whether there is any way that, in certain cases, a large number of complainants actually work against the prosecution? Would a jury that heard that Mr X (a celebrity) is arrested, following which various other people made allegations, take the view that their credibility is weakened by the fact that the complaints came after the publicising of the arrest? Would some juries think that if there are, say, 30 complainants they can’t all be true, but they cannot say which and so the benefit of the doubt goes to the defendant in all cases?

I’m not saying for one moment that that line of reasoning is correct, but is this something that may happen?

Conclusion

Is there any merit in that argument? It’s difficult to research the question and so maybe we will never know. The fact that the CPS are against defendant anonymity is telling (but it’s not unheard of for measures that the CPS are in favour of to backfire – Special Measures in certain cases is an example).

There are other arguments for and against anonymity, but it seems to me that this is one area where the arguments are not so clear cut.

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2 thoughts on “Could anonymity for the accused help the Prosecution?

  1. Frankly the prosecution line that defendant anonymity “would stop other victims from coming forward” is fundamentally back-to-front.

    If someone has been e.g. sexually assaulted they should come forward and make a complaint (at the time). If the accused is a celebrity, then they may (rightly) believe that their accusation may not be believed.

    However (and I think this is your point) if multiple people made complaints – and without any band-wagon to jump on – then the prosecution case would be very much stronger.

    But my point is that if alleged victims want justice then the onus and responsibility MUST be with them to come forward and make a complaint of their own initiative – and it is quite wrong for the police and prosecutors to solicit (and I guess that I DO intend to imply the sordid meaning of this word) such accusations through publicity.

  2. Pingback: Anonymity for defendants? Pam Ayres weighs in | UK Criminal Law Blog

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