New Bill Widens The Fairness Over Anonymity
I have always been a strong believer that the courts do not only exist to convict the guilty but are also there to free the innocent.
As a fundamental right in this country, we are all presumed innocent until proven guilty.
In reaching that difficult balance there has to be a level playing field, administered by dedicated legal professionals and each side coming to criminal litigation with an equality of arms.
Over the past few years I have been publicly campaigning for defendants in sex cases to be afforded the same protection of anonymity as that given to the victims.
I have published articles on my websites, been interviewed on radio and TV, and quoted in the press.
The most recent high profile case which has caused much discussion is that regarding Sir Cliff Richard. How he was named and his reputation dragged through the press only to end up with him not being charged by the CPS.
The issue is that no matter what decision the CPS finally took, his reputation will always have that tarnish.
I am not saying that such allegations should not be taken extremely seriously and investigated fully. What I am saying is that with the dramatic effect that an allegation of a sexual offence has on a person’s reputation, they should not be named until convicted.
I of course say this with the rider that the Judge in the case has the overall discretion to allow the accused’s name to be made public if it is in the public interest to do so.
I had hoped that after the Sir Cliff Richard debacle and the recent acquittal of the footballer Ched Evans, that some reasoned debate would occur over an equality in anonymity for defendants in sex cases.
However, that is not the case. In fact it is potentially becoming more serious.
It has always been a fundamental part of our criminal justice system that the accused would know who is making the accusation. That cornerstone may now be eroding.
An article in The Guardian from 27 October 2016, has detailed a proposal to change the law with regards to stranger rape.
The proposal is that the accused is not told the name of the accuser in cases of stranger rape.
Campaigners have stated that, by the accused knowing the name of the person making the allegation it puts the alleged victim in unnecessary danger.
This proposal has now formed a draft amendment to the Policing and Crime Bill which is currently before the House of Lords.
Neil Smith of the Metropolitan police sexual offences, exploitation and child abuse command said: “There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect. Instead, it is an operational decision taken by the officer in the case on a case-by-case basis.”
It has been reported that the number of stranger rapes is thankfully small, some 10% according to Rape Crisis. However, campaigners have stated that these new proposals should cover all sexual offences to protect alleged victims.
I fully understand the need for protection, but that protection has to go both ways.
The press are not shy of naming and shaming a person accused of a sexual offence, only to then report that they have been subjected to verbal and physical attacks.
So we find ourselves on the precipice of not only is the defendant named as being accused of a sexual offence, they are not even allowed to know who is naming them.
Surely, if it is the case the Judge deems that the defendant is a risk then surely their powers under the Bail Act are there to afford protection.
Furthermore, if the defendant is convicted then the sentencing Judge has a wide range of powers at disposal including a life sentence for offences of Rape.
What is of vital importance is the ability for the defendant to be able to prepare his case fully. To be able to answer the accusation made and test the voracity of the evidence brought against him.
When a vital piece of information, such as the identity of the accuser, is kept from the defendant we have to then consider whether or not any defendant can properly defend themselves; or indeed have affair trial.
In bringing a prosecution, the police have a wealth of resources at their disposal to make a through investigation.
Following an accusation being made they investigate the circumstances of the offence, interview the accuser, interview the defendant and make all necessary checks and the gathering of evidence to ensure they are ready for charge and then trial.
By the time a defendant’s legal team has become involved, much of this work has been done by the police and it is for the defence to start their work.
It is worthy of note that a defence team’s work does not stop at the beginning of the trial but can continue right through the proceedings. In some cases, even beyond.
We have to always bear in mind that just because the allegation is made it doesn’t follow that it will secure a conviction. It is for the courts to determine a person’s guilt or innocence. No one else, no matter how despicable the alleged offence is.
It is a sad fact in our society that not all allegations are made with the cleanest of hands. There are countless sexual offence cases where a prosecution has fallen when it is found that the accuser had over egged the pudding, not been fully open about the circumstances and in some cases, just plain lied.
I have been involved in cases where a person has said one thing in evidence and then later posted on social media information that totally undermined their evidence. Had their identity been kept secret how would the court ever have known that the person had lied.
We can also look to the recent re trial of the footballer Ched Evans, where it was only the identity of the accuser through her words and actions that brought about evidence, which undermined the prosecution’s case to such an extent that he was acquitted. Had that not been the case then he would have been wrongly convicted of a terrible sexual offence.
There are also many circumstances that had the accused’s name not been disclosed to the defence, then right and proper investigations would not have been made and a wrongful conviction would have been the result.
No matter which way you cut the proposal, if a defendant was falsely or wrongly accused of a sexual offence and then convicted of that offence, it would be a heinous travesty of justice and an undermining of the criminal justice system.
Our criminal justice system works because, as a society we have trust in it.
For a person accused of any crime, to have the state withhold the identity of their accuser is, in my mind, a dangerous step. Surely this destroys the balance, fairness and perceived justice that our legal system has been so proud of for centuries.
I still strongly believe that we have the best criminal justice system in the world however, such changes as this, for what may seem the best of intentions, is the start of a slippery slope.
Sources:
Victims of rape by strangers to have identity protected under new bill – The Guardian
Extending anonymity to sexual crime suspects is a bad idea – here’s why – The Guardian
About Nick Freeman
Nick Freeman is probably the best known solicitor practising in the country today.
He has been dubbed "Mr Loophole" by the press owing to his vast technical knowledge of motoring law matters and his ability to successfully challenge the prosecution over procedural irregularities.
Nick is widely known for his celebrity client list and high profile criminal defence cases.
Nick is the head of Freeman & Co. Solicitors and although based in Manchester, represents defendants in motoring and criminal cases all over the country.
After graduating from Chester Law School in 1979, Nick started his career as a prosecuting solicitor for Greater Manchester Police.
Nick soon became known for his technical legal abilities and robust court room style and he was soon recruited into private practice by the highly respected solicitors firm of Burton & Co. He was soon to be made a partner at the practice but in 1999 he decided to start his own firm following which Freeman & Co. was formed.
Owing to Nick's meticulous case preparation and technical legal skill he soon made Freeman & Co. one of the most respected and sought after criminal solicitors firms in the country.
Despite the celebrity client list and media attention, Nick and Freeman & Co. have built their practice on representing ordinary members of the public with the same tenacity as those more high profile cases that are reported in the press and on TV.
Outside of his professional practice Nick is a regular expert guest on TV and radio and is well regarded as an expert legal commentator. He is an ardent supporter of defendant anonymity in sex cases.
In recent times his credits have included Tonight With Trevor MacDonald, Close Up North West, Channel 4 News, BBC Radio 4 and BBC Radio 5 Live to name but a few. He also appears regularly on Sky News, BBC News 24 and Legal Eagles on ITV's This Morning. Nick is a regular legal commentator for the Sunday Times.
A father of 2 children Nick is a keen golfer with a 2.9 handicap and enjoys vigorous exercise with his Staffordshire Bull Terrier.
Contacting Nick Freeman
For professional matters and representation Nick can be contacted through Freeman & Co. on 0161 236 7007 or you can send him a confidential email by clicking here.
If you would like to contact Nick for a media appearance or legal comment please call David Simister on 0845 389 26 26.