THE BLOG

Does the UK Really Need a Right to Anonymity?

13/01/2015 12:32 GMT | Updated 12/03/2015 09:59 GMT

In the current debate over suspect anonymity, the fundamental importance of open justice is being overshadowed by individuals who have been the subject of salacious publicity. Most recently by MP Mark Pritchard against whom allegations of rape were not pursued. Similar calls were made after the acquittal of then deputy speaker Nigel Evans. Both cases involved alleged sexual offending. No such calls are made in any other type of alleged crime. Cases involving sexual offending are recognized as those where complainants have found it hardest to make a complaint. For many, this alone makes for a presumption definitely in favour of publicity. A deeper analysis of arguments put forward in press statements demonstrates that the controversy is mainly due to sensationalist reporting of suspects who were already in the public eye and failures to fully report undermining evidence that may have led to acquittals. It means that there is no balance in the reporting. It is perhaps no coincidence that it is almost impossible to persuade commissioning editors to produce balanced legal programming in relation to sexual offending.

Some argue (including Mr Pritchard) that, if a complainant is anonymous then so should the suspect remain anonymous but, there is a fundamental difference between complainant and defendant and arguments based on parity are misconceived. Unless and until complainants are not put under pressure not to complain and / or not to attend court, there is a balance in favour of protection, subject to the prosecution of those who deliberately lie and the court's power to lift the reporting restriction. The real danger in suspect anonymity is the risk of manipulation which could lead to an establishment cover up.

Most people believe in open justice, not secrecy. UK law recognizes a qualified right to privacy which is reflected in police guidelines not to deliberately publicise who they are investigating or arresting. This is very different from a right to anonymity which would remove a public right to know.

I have prosecuted child rape, indictments containing decades of secret sexual violence and a case where a woman was raped to death. I have also defended men who have been falsely accused where the alleged victim has admitted lies. I have defended a man acquitted of rape in 8 minutes who had to change his name to avoid what was available online. A barrister involved in such cases has to remain balanced and ensure that everyone receives a fair trial. The reporting of such cases allows readers to consider not just what they know or consider about the facts but also to understand legal principle: You can pity Rolf Harris and DLT for being tried so long after the events but, as a result, you can think about the law on limitation & the fact that, until the Saville publicity, their behaviour was condoned. Many are gutted at the disgrace of Stuart Hall but without open justice his past sexual interest in young children might have remained unknown. You can accept that William Roach is both not boring and not a rapist as a result of news reporting of his defamation and criminal cases. The right to know gives the public the opportunity to make informed decisions and to lobby for better laws.

When a media helicopter circles over Cliff Richard's house, there are questions about police procedures. Citizens are entitled to a responsible exercise of police powers to investigate and CPS powers to charge. Bad decisions make for bad publicity. Many would argue that, rather than remove legal aid for judicial review; the Government should improve procedures and access for judicial review of decisions to arrest / charge and provide better sanctions on costs for an improper / failed prosecution. However, the law should not fetter investigations which are carried out on proper basis. It follows that suspects and defendants accused of sexual offences should not be anonymous but ought to be treated fairly. To allow blanket anonymity makes the risks of a cover up on behalf of those with, power, influence, money or status & celebrity too great. If they had such a right - when until - death? That's what effectively happened with Jimmy Savile? If they had such a right - who for - what about global online abusers where only publicity can expose them? What about child abusers and serial abusers of women? Most would agree that anonymity in this context is wrong.

An investigation cannot and should not pick and choose its lines of inquiry based on who the suspect is or what they are accused of. Releasing details of a suspect might improve an investigation where other potential victims or witnesses are sought. Conversely, promoting publicity undermines the fairness of the process and damages individuals lives and reputations. These are issues of conduct but not for changes in the law. It is impossible at an early stage to know if one complaint could lead to more victims. Publishing suspect identity should be done in a fair and balanced way and the press play a vital role by publishing information to the public. Where suspects are identified we have a system which tests the evidence by lawyers deciding charges and, if proceeded with, testing evidence in open court. A verdict becomes more acceptable when it is based on balanced information.

Of course, it has to recognized that there is a lack of balance on social media. The Internet has given us freedom. It also gives us trolls. It is arguable that a right to anonymity is unenforceable. In any event, one result of the recent sensationalism is that recent publicity openly allows readers to make conclusions on the evidence, not what is on twitter. Social media has the ultimate power of correction from those informed to those who shoot from the hip. The logical extension of a right to anonymity is sanctions against those who publish and frankly the police need to be spending their time investigating rape and sexual abuse not the press or the trolls. In the end, it comes to this: We have a right to fair and balanced policing. We have a right to know who is being investigated and prosecuted. We have a right to a fair trial. We have a right to open justice. Does the UK really need a right to anonymity?