The law needs to change to allow anonymity for sexual offences suspects

Paul Morris sexual offence defence lawyer London

Written by BCL partner, Paul Morris, Originally published by EuroNews on 16th August 2019.

The UK’s Lord Chancellor and Secretary of State for Justice, Robert Buckland MP, faced criticism earlier this month by suggesting that the anonymity of those suspected of serious crime should be respected until they are charged with any offence if they have a reputation to protect. Many agree that the time has come for change, with the early publication of a suspect’s name in an investigation, particularly those involving sexual offences, having the potential for devastating consequences. While the protection of lifelong anonymity for complainants in sexual offences, regardless of the outcome of any police investigation, is enshrined in law, no equivalent protection exists for suspects.

The debate into the anonymity of individuals under investigation prior to any decision to charge was recently ignited after the trial and conviction of Carl Beech, who falsely accused senior political figures of sexual abuse and murder. This was against the backdrop of a string of recent high-profile investigations into sexual offences – and an announcement earlier this year that Sir Cliff Richard has publicly backed the Falsely Accused Individuals for Reform (‘FAIR’) organisation – highlighting the need for action.

Following a lengthy police investigation into the claims made by Beech, no criminal charges were ever brought against those that he had accused. His claims were found to be false, and in subsequent proceedings, he was sentenced to 18 years’ imprisonment for perverting the course of justice. The devastating impact of his false claims were described as “monstrous” and labelled “smears of the very worst kind” during the sentence hearing. The senior political figures, who had been accused, described the devastating impact that the false claims had on their lives. It is true that a unique stigma attaches to allegations of sexual offences and those accused often face catastrophic consequences in terms of damage to their reputations and ability to work or study. Investigations regularly take many months, sometimes years, before a decision is taken whether to prosecute. For most, the damage is indelible.
“The detrimental impact of being accused of a sexual offence and the stigma attached reaches far wider than just those within the public eye. Strong arguments also exist that these statutory measures should not just be confined to suspects facing sexual allegations.”

The concept of extending anonymity to protect the identity of those suspected of sexual offences is not new. The Sexual Offences (Amendment) Act 1976 enshrined it, only to be repealed in 1988. Since then, anonymity of suspects has been the subject of much debate. Guidance issued by the College of Policing in 2017 states that ‘police will not name those arrested or suspected of crime save in the most exceptional circumstances where there is a legitimate purpose to do so.’ This guidance came after the Leveson Report, which identified that: “it should be made abundantly clear that save in exceptional and clearly identified circumstances, the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.” This principle was reiterated in the Government’s 23 July 2019 response to FAIR’s petition for anonymity, stating that: “there should in general be a right to anonymity before charge in respect of
all offences but there will be exceptional circumstances where there are legitimate policing reasons for naming a suspect.” In reality however, such guidance has had no tangible effect on the naming of suspects pre-charge. It is often routine for suspects to be named by the police and in the media long before it is established whether there is any realistic prospect that they will be charged. While the guarantee of anonymity to complainants has occasionally been questioned, it is now widely accepted. The time has come for a balance to be struck.

The Justice Secretary’s comments seemingly lend support to the proposition of suspect anonymity pre-charge, albeit he made the distinction between a “reputable business person who is accused of fraud” and whose good name might be undermined, and a person with “a list of previous convictions” and intelligence suggesting that others might come forward. In regard to the latter, Mr Buckland queried whether this should be a case where anonymity is automatic. His comments suggesting that only those of good character and with a reputation to protect should be afforded such rights have been dubbed suggestive of a two-tier system, namely those who deserve anonymity and those who do not. This has attracted criticism, with the suggestion of a potential for the rich and powerful being afforded greater protection.

The Justice Secretary’s comment has arguably unnecessarily muddied the waters. The existing guidance already identifies that there will be exceptional cases whereby the identity of an individual under suspicion should be revealed, which would no doubt include circumstances when the publication of a suspect’s name might lead to complainants coming forward. Were a statutory backing for anonymity prior to charge introduced, provision could be made for anonymity to be lifted by a crown court judge in certain circumstances. In addition, identity may be published on charge in any event.

The detrimental impact of being accused of a sexual offence and the stigma attached reaches far wider than just those within the public eye. Strong arguments also exist that these statutory measures should not just be confined to suspects facing sexual allegations. The recent Gatwick drone investigation provided compelling evidence for a more general statutory backing for suspect anonymity. And few will have forgotten the case of Christopher Jefferies, whose life was blighted when he was wrongly implicated in the murder of Joanna Yeates. The public interest argument in favour of the publication of the names of suspects before it is even established that credible evidence exists against them is surely outweighed by the duty not to stigmatise innocent individuals in the name of transparency.

 

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Paul Morris is a partner at BCL who has extensive experience in complex and serious crime, defending a range of general criminal matters including homicide, sexual offences, blackmail, drugs offences and assault. He has particular experience in crisis and reputation management, advising professionals from the finance, music, medical, sports, political and teaching professions in relation to serious and complex investigations and prosecutions.