Defendant Anonymity in Rape Cases: Should the Law Protect the Accused?

Written 21st April 2016 by Olliers Solicitors

High-profile rape (and other sexual assault) cases attracting the media’s attention often result in renewed calls from campaigners for changes to the law on defendant anonymity in these types of matters. 

Complainant Anonymity

Currently, the law protects a complainant’s right to anonymity. The Sexual Offences (Amendment) Act 1976 (“the 1976 Act”) grants automatic lifelong anonymity to an individual who alleges that they have been a victim of rape, once their complaint has been made. This protection has now been extended by subsequent legislation to certain other sexual offences. The result of these laws is that it is a criminal offence to publish a complainant’s identity or any information that might lead to a complainant being identified. In one recent case which received significant public exposure, the former editor of the Sun newspaper was convicted after a pixelated photograph of the footballer Adam Johnson’s teenage victim was printed by the tabloid. In the writer’s opinion, there can be no question that this protection is proper and right. 

Anonymity for Defendants

The position for those accused of rape, however, is in stark contrast to that set out above. Only in exceptional circumstances is the disclosure of a defendant’s identity prohibited, for example due to his vulnerability, or if it would result in the identification of the complainant.

Is it not wrong to deprive those who are accused of rape the same protection as that afforded to complainants? If it is wrong, how far ought the law to go in changing the position? The first point to note is that this is a complex and sensitive question to which there are no easy answers. Indeed, politicians have grappled with the question before and have not been able to find a satisfactory solution. The 1976 Act which first granted anonymity to complainants provided the same protection to defendants, but the provisions relating to the latter were repealed in 1988. Many years later in 2010, the newly-elected Coalition Government committed to extending anonymity in rape cases to defendants, only subsequently to do a “U-turn”.

The main concerns of opponents to change in this area are that defendant anonymity would have a chilling effect both on the reporting of and prosecution of rapes. Opponents also point to the fact that defendants are not granted anonymity in relation to other serious offences. Why, then, for rape cases? Supporters of change point to the inequality to which the distinction between complainants and defendants gives rise. Why, they say, do potentially innocent defendants not receive protection in the absence of any finding of their guilt?

Supporters also point to concerns regarding false allegations and to the particular stigma attached to allegations of a sexual nature, especially rape. If one accepts that the current position is wrong how, then, might it be improved?

Anonymity Before or After Charge?

One suggestion might be to grant defendants anonymity only up to the stage at which the CPS has brought charges. The problem here is that evidentially the threshold for the CPS to bring charges is quite low. Only a ‘realistic prospect of conviction’ is required and there would likely remain lingering questions about the adequacy of such protection. After all, here at Olliers, we have successfully defended many individuals against charges of this nature in circumstances where allegations ultimately have proven unfounded. Another more controversial suggestion would be to grant defendants anonymity until conviction after trial, but this might be seen as a step too far in favour of defendants.

Of course, neither of these suggestions would assist somebody in the position of Ched Evans, whose rape conviction dating back to 2012 was today quashed by the Court of Appeal, and who will now face a re-trial. The reality is that even supporters of a change to the law do not propose that anonymity extend beyond conviction.

There is unlikely to be a change in the law any time soon. As long as the defendant anonymity remains exceptional, rather than an automatic entitlement, it is important that those facing allegations of rape and other sexual offences receive a discrete and sensitive service.

Olliers Solicitors – Specialist Criminal Defence

At Olliers, we have vast experience of defending allegations of this nature from the initial police investigations, through to trial. If you require any advice or assistance, please do not hesitate to contact a member of our team on 0161 834 1515. Written by Sami Halpern. Sami is a trainee solicitor at Olliers currently based within our Magistrates’ Court Department.

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