November 30 2023

Suspect anonymity in Northern Ireland

Suspect anonymity in Northern Ireland

Old Bailey: the Central Criminal Court of England and Wales

Since the infamous Belfast Rugby Rape Trial in 2018, reform of the law and procedures in sexual offence cases in Northern Ireland (NI) has been a key priority of the NI Department of Justice. An independent review commissioned by the Criminal Justice Board, the Gillen Review, set out 253 recommendations aimed at improving outcomes in sexual offence cases and the experiences of those who become involved with the criminal justice system, including complainants, witnesses, and defendants.

Last year the Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022 (‘SOTV’) was enacted, seeing many of the recommendations of the Gillen Review implemented. Some of those provisions came into operation the day after Royal Assent. The remaining provisions, which included new criminal offences such as up-skirting, cyber-flashing, and non-fatal strangulation, were to be implemented over a period of time later. This month marks the commencement of sections 8 – 19 of SOTV, regarding privacy and anonymity in sexual offence cases.

While there has been much discussion around the significant changes implemented in SOTV, this article focuses on one important issue that often gets overlooked – anonymity for the accused. The high-profile nature of the Rugby Rape Trial defendants and prominent discussion of the trial in the media led to many issues being raised, including discussion regarding the granting of anonymity to defendants in sexual offence trials. As a contentious topic, defendant anonymity ‘generated more controversy and division of opinion than any other issue’ in the Gillen Review and, ultimately, remains an area that needs explored further.

New Anonymity and Privacy Provisions
The anonymity and privacy provisions of SOTV are contained within Chapter 2 of the Act. Sections 8 – 11 deal with amendments to further protect a complainant’s right to lifelong anonymity in sexual offence cases. This includes the extension of anonymity beyond a complainant’s life, now lasting 25 years after the date of their death, and increasing the penalty for breaching the anonymity rules. While prior to SOTV all sexual offence trials were heard in open court, section 19 will now exclude the public from entering court during certain trials and in appeal hearings to further enhance the privacy of proceedings.

A prominent change to the law on sexual offences is found in sections 12 – 18 SOTV, which provide restrictions on the reporting of suspects of sexual offences. The new protections include:

  • Anonymity automatically starting from the moment an allegation that a person has committed a sexual offence is made to the police or the police have taken a step to investigate a sexual offence
  • Publication of the suspect’s name or anything relating to a suspect which may likely identify them, such as their address, place of work, still or moving pictures, are not allowed
  • Anonymity ceases to apply if there is a summons, warrant, committal, or the person is charged with the offence either in custody or by indictment
  • If none of those events occur, then anonymity expires upon 25 years after the suspect’s death

SOTV also creates a new criminal offence of breaching the suspect anonymity provisions with a maximum penalty of 6 months imprisonment and/or a fine of up to £5,000. This is commensurate with the new penalty for breaching complainant anonymity.

The new provisions are the first legislative change to anonymity for the accused since the Sexual Offences (NI) Order 1978 was repealed in 1994, which had previously provided anonymity for persons accused of rape until the point of conviction. This also marks the first time that NI’s legal position on defendant anonymity will differ from the rest of the United Kingdom, in that it provides a statutory automatic right to anonymity for the accused in sexual offence cases until they are charged.

Creating a Legal Right to Anonymity
As stated at the outset, the change to defendant anonymity was guided by the recommendations of the Gillen Review. Chapter 12, Voices of the Accused, was devoted to the issue of defendant anonymity. At the time, police practice was to withhold suspect identities before charge, although this was not enshrined in legislation. Gillen considered a range of arguments in favour of and against anonymity for the accused, finding that ‘there are compelling arguments on either side of the issue.’ He also gave thought as to whether any such anonymity should be until the point of charge, as it was currently in practice, or extended until the point of conviction.

Ultimately, Gillen’s recommendation was to maintain the current practice of pre-charge anonymity, albeit on a more secure statutory footing. This recommendation is what SOTV sections 12 – 18 will now implement. The decision not to extend the anonymity provisions related to the accused was justified in the review on the basis that:

  • the ‘jigsaw identification’ argument, whereby the publication of the accused’s identity may lead to the public identification of the complainant, was unsustainable;
  • the public interest in encouraging other complainants to come forward was a greater imperative for the rule of law than the need to protect those who have been acquitted;
  • it would be fundamentally unfair for those accused of sexual offences to have anonymity when those accused of other serious offences, like murder, child abuse or blackmail do not, because the stain of a rape acquittal is no greater than the potential stain of those offences

Future Reform?
While the introduction of a statutory protection for anonymity until the point of charge is certainly a welcome development, further reform in defendant anonymity provisions is needed to sufficiently address issues in NI.

Primarily, individuals who are accused of sexual offences are subject to intense stigma as a result of their identity being public, caused by media and social media scrutiny. They endure a long-term stain, even when acquitted, that is unique because of the nature of the offences which they are accused. The Gillen Review highlighted some consequences, including loss of employment, the perceived need to leave NI, verbal abuse, and severe psychological distress. It was noted that these consequences can also extend to affect members of the accused’s family, especially in the bullying of children in school and elderly relatives suffering poor health. These consequences are not limited to the period before charge.

This experience is perhaps heightened in NI, which has long been a socially and morally conservative society, with attitudes of shame and stigma reflected in respect of issues relating to sex. There are also the added dimensions of NI being a small, close-knit jurisdiction and one where there is the threat of extra-judicial violence at the hands of paramilitary organisations. These context-specific factors further justify the need for anonymity until the point of conviction, to protect those who are subsequently acquitted from the unique stigma of an accusation of sexual offending – an argument rejected by the Gillen Review.

In the interests of justice for those acquitted, there are strong arguments for anonymity to be provided until conviction. However, without further research that adds to the debate in an informative manner, there may not be future reform. My ongoing PhD research is exploring these issues through qualitative interviews with leading stakeholders and will add to this debate by setting the tone for constructive discussion of defendant anonymity provisions in NI.