July 23 2024
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To Name or Not to Name? Anonymity for suspects and defendants in criminal proceedings

To Name or Not to Name? Anonymity for suspects and defendants in criminal proceedings

Pic: Patrick Maguire
Red Cell: Patrick Maguire from Proof magazine, issue 4

The ongoing saga surrounding the BBC and the serious allegations apparently made against one of its ‘top stars’ has dominated the public discourse over the past 72 hours. Social media is rife with speculation as to the identity of the person at the centre of what has quickly become a scandal, the likes of which the BBC has not seen since it was criticised for its inaction in the cases of both Rolf Harris and Jimmy Saville. The conventional media is also a flurry with speculative chatter, with radio and TV hosts trying to tread a fine line between being able to talk about the allegations in a way that makes for entertaining listening, but without leaving themselves open to possible legal action. As recently as yesterday, BBC ‘talent’ broke ranks to call on their co-worker to ‘come clean’ and end the speculation.

Whether you think the BBC has handled the complaint properly or not, is, I would argue, not the key issue here. The way that the media have tiptoed around the identity of the presenter at the centre of the storm gives rise to a bigger more important question. A question of fairness. Should suspects and defendants at the centre of serious sexual allegations be named prior to conviction?

It is generally accepted that complainants of such crimes should not be named, and the law reflects this. The police, CPS and courts, to their credit, do everything they can to safeguard the privacy of complainants. Rightly so. But what has been lost in recent years, as a succession of reforms to the criminal justice system that strengthened protections for complainants and witnesses, is that defendants, regardless of what one might instinctively think or feel about them, are innocent, until such time that they are proven guilty.

The threshold for carrying out an arrest has been made deliberately low. Today, in our system, a police officer can arrest for even the most trivial of offences, and provided that they can tick one of the necessity ‘boxes’, it is highly unlikely that the lawfulness of that arrest will ever be successfully challenged.

“Ah”, I hear you say – “but what about charging? That is a different threshold.” Yes, but increasingly – no. Political pressure and public expectations now play a significant role in the decision to charge suspects. You may be forgiven for thinking that political pressure is not mentioned in the Code for Crown Prosecutors. But whilst this is true, a substantial body of legal guidance and policies now accompany the Code for Crown Prosecutors, which prosecutors are duty bound to consider when applying the Code.

In high priority cases, this guidance along with pressure from Police & Crime Commissioners and politicians, serve to create an environment where the path of least resistance will be to charge. Cases of domestic assault frequently involve allegations and injuries on both sides, self-defence arguments and issues of credibility, which were the cases not of a domestic nature, would perhaps lead to a different charging decision being taken. So, what happens? The cases end up in court, and frequently because the case cannot be proven an acquittal inevitably, and rightly, follows.

But what about the defendant? Little thought is given to this person who has not been proven guilty of the allegation and is therefore for all intents and purposes innocent. Let’s be clear, some of these now acquitted defendants will have committed the act for which they were charged. But that is not the point. Due process has been followed and the case not proven. But more importantly, some will be genuinely and completely innocent of the charge(s). Yet irreversible damage to their lives will have been caused. They may have had to borrow money, empty their savings account and in some cases sell their home, just to fund their defence. Even if a costs order is made in their favour, it never covers all the costs, so an innocent defendant will end up paying the price of a court case they had no role in bringing. Defendants receive no compensation for the trauma they have suffered, even where a case may have been extremely weak.

But perhaps worst of all is the reputational damage that follows from the media coverage that accompanies the case. Sometimes it is little more than a line or two in a local paper. But because of the internet, that local paper now has global reach. Even a change of name cannot offer the innocent person some respite, because their image will be out there for all to see for forevermore. Their children, prospective partners, and potential employers will all have to weigh up how they feel about this exposure. In the case of children, the impact of being associated with someone who was once accused of such a serious crime can be life shattering, particularly young children at school where some fellow pupils may take great delight in making the child pay for the perceived wrongs of their parent. Many are unable to build friendships or relationships again. As for employment prospects, the reality is that most employers simply will not want the hassle that follows from employing someone who has been through the justice system, even where the outcome was their exoneration. In short: a prosecution for a sexual crime makes the subject of the allegations persona non grata in our all too judgemental society.

Surely, this cannot be right, for it is not fair. Lady Justice wears a blindfold, and for good reason. Perhaps it is time to handout blindfolds to the press too, which can only be removed on conviction.

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