Posted on 7th July 2014

Two high profile sex cases in recent days have thrown open the debate about parity in law of anonymity for both victims and defendants.

Following the conviction of Rolf Harris, Keir Starmer, the former DPP, argued that it is vital that those accused of sexual offences be named in order that further potential victims can come forward. Evidence to support this comes from both the Rolf Harris case, as well as the Stuart Hall case where one victim made a complaint, and then once the case was publicised others came forward to make further allegations. The new allegations were able to provide the prosecution with assistance and strengthen the case for the Crown – rather than there being just one lone accuser, there were numerous complaints made, independent to one another which the jury could use in deciding guilt in each case.

However, another high profile case has illustrated the damage that naming an individual accused of rape can cause. The President of the Oxford Union was recently questioned on suspicion of rape. No charges were brought, but during the period he was under suspicion photographs of him appeared in the national press, high profile speakers cancelled their engagements to speak at the Union and there were various articles about his private life. Now that he has been exonerated he will have to go forward in life as “the man accused of rape.” Due to the publicity surrounding his case potential employers will know of the accusations and his career may have been damaged before he has even left university. Supporters have called for his accuser to be named, arguing that she should suffer the negative publicity he has endured.

Complainants in sex cases are guaranteed a right to anonymity pursuant to the Sexual Offences (Amendment) Act 1992. The reasoning is obvious; a complainant in such a sensitive case ought to be able to speak freely about their ordeal without fear of their plight being spread across newspapers and stories and being written about any previous sexual behaviour. Such protection will encourage accusers to come forward – the anonymity offered coupled with the measures available at court, such as giving evidence via video link, are vital to ensure genuine victims of sexual offences have the courage to come to court. If there was no guarantee of anonymity my fear is that we would see a sharp drop in the number of rape and sexual assault allegations.

So where is the middle ground for those seeking parity between accuser and accused? In my opinion those accused of sexual offences ought not to be named unless they are charged. This would offer a person who is investigated but then exonerated the chance to move forward with their life without negative publicity. It would also ensure that if the CPS were making a charging decision they would look only at the offence charged and assess the weight of the evidence to see whether there is a reasonable prospect of success, rather than looking at numerous allegations and allowing potentially weaker allegations to be charged in order to shore up a conviction on potentially stronger cases – as happened in the case of Nigel Evans MP who faced allegations of sexual assault that even the complainants didn’t believe amounted to sexual assault, all so that the prosecution could use those allegations to support one of rape.

Once charged then it is right and proper that a suspect be named, as they would be in any other criminal case.

As to complainants, it is vital that their right to anonymity remains. They should only be named if it is subsequently shown that they have deliberately lied to the police and are charged with perverting the course of justice. This approach would encourage genuine complainants and hopefully dissuade wrongful allegations.

There is no perfect solution; the nature of our adversarial system is that there are winners and losers. We should do all we can to make the process before the verdict as fair and dignified as possible.

Written by Michelle Heeley, Barrister at No5 Chambers. This article was written for Halsbury’s Law Exchange, a legal think tank hosted by Lexis Nexis.

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