Defendant Anonymity in Sexual Offence Cases in the UK

Despite a high acquittal rate, the social stigma attached to unfounded allegations of sexual abuse is particular damaging. Although the law protects the identity of a complainant in sexual offence cases from the public, whether or not there is a conviction, the identity of an accused will only be protected in very exceptional circumstances. The result is that those falsely accused may feature prominently in the press, both in anticipation of and during court proceedings.

Recent incidents reported by the press and the subject of much discussion on social media, such as those relating to Sir Cliff Richard, have again drawn attention to the issue of defendant anonymity in sexual offence cases. Following allegations of historic sexual assault, his apartment was searched by the police without notice and while he was abroad, yet the raid was broadcast live by the BBC, with footage taken both on-the-ground and by helicopter. He was subsequently interviewed, but not arrested or charged with any offence.

How the media came to know of the planned search and the handling of the investigation by the police raises many questions concerning defendant anonymity. Even though police procedure and press standards are increasingly scrutinised and attempts made to clarify how contempt of court may arise, the fact remains that the false identification of individuals connected with sexual offences is particularly unjust, but no less common.

Below we briefly consider the current law relating to anonymity in relation to those accused of sexual offences and highlight some of the issues that suggest that the protections, or lack of, need to be reconsidered.

The Law on Defendant Anonymity in Criminal Court Proceedings in the UK

The importance of the principle that justice be administered openly and in public means there are very few exceptions to the disclosure of the identity of defendants. It is only those considered to be vulnerable, such as minors or complainants in sexual offence cases, who have their identities anonymised (automatically protected from the press and public during a trial).

Current police practice is not to release the names or identifying details of those arrested or suspected of a crime other than in exceptional circumstances, such as disclosure being in the public interest. The serious nature of sexual offences, particularly allegations of historic abuse, means the police are more than likely to consider the release of the identity of those suspected, arrested or charged justified. It is argued that doing so encourages more people to come forward and helps the prosecution to formulate a case, particularly in historic sexual abuse cases where evidence is usually scant.

In terms of the law relating to the disclosure of the defendant’s identity, there is no general right to anonymity once charged (or at all). However, there are some reporting restrictions that limit the disclosure of identifying material at various stages of a criminal investigation and during a trial. These either operate automatically or are imposed by the court. For example, the Education Act 2011 imposes an automatic restriction, which makes it a criminal offence to publish material identifying a teacher accused of a criminal offence against a child at their school until the teacher is charged.

At the trial stage, the court has discretionary powers to restrict the reporting of criminal proceedings, which may include the identity of a defendant. The Contempt of Court Act 1981 allows for the court to order that any report of proceedings be temporarily postponed, usually until the trial ends, or when there there has been a guilty plea or conviction. This is particularly so where there is a likelihood of ‘jigsaw identification’, which is where the naming of the defendant would invariably lead to the complainant being identified. For example, it will be reasonably obvious who a complainant is if a foster carer who has cared for someone for many years is named in connection with a sexual allegation case.

Although the court undoubtedly acknowledges the stigma that unfounded allegations of sexual abuse can cause, as well as the damage done to reputation and the interference caused to the privacy rights of the accused and their family, disclosure of identity will often be justified, usually on the basis that the issue of child or sexual abuse should bear constant and necessary scrutiny through public debate.

As mentioned above, protection of anonymity for adult defendants is an exception to the general rule of open justice. In most cases, those falsely accused of an offence will have to face the public stigma of the accusation, even when a case does not go to trial or they are acquitted.

Protections for the Accused and Defendants in Sexual Offence Cases

The recently heightened public interest in allegations of historic sexual abuse and ongoing police investigations, such as Operation Yewtree and Operation Notarise have revealed a particular difficulty in balancing the rights of all those involved in sexual offence cases. While the identities of those who make allegations are fully protected, the falsely accused are denied anonymity.

Perceived weaknesses in the criminal justice system have resulted in a raft of measures that focus on protecting vulnerable witnesses and complainants. For instance, ‘special measures’ have been made available to people who give evidence, such as by being able to give evidence from behind a screen or via video link.

In some cases, cross-examination of a witness may even take place away from the court altogether. Those that are considerably vulnerable or complainants in sexual allegation cases give their evidence on video, in accordance with the Achieving Best Evidence (ABE) guidance. More often than not, this video recorded evidence, which is given in private, then stands as their evidence in chief when a trial commences.

However, such substantial protection afforded to all complainants, coupled with distorted media reporting, can appear disproportionate when compared with the interests of the accused – the unfairness of which undermines their presumed innocence.

The potential injustice is compounded when considered within the context of changes made to criminal defence funding. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) prohibits the recovery of legal costs by those who are successful, but have paid for their legal defence privately. They are, in effect, punished for having sufficient funds or gathering money together in order to obtain what they consider to be ‘the best defence possible’.

The Problems of Publicity

Some may ask, what difference does it make if a person is named before the conclusion of a trial, particularly when it results in a conviction? The difference is that the naming of defendants has the potential to undermine the justice of a case for both the complainant and the defendant.

The inherent difficulties and complexity of prosecuting cases is a major consideration to the issue of defendant anonymity. On the one hand, the more complainants that come forward following publicity, the greater the prosecution is helped in building a case. However, if the evidence of one complainant is undermined, it may be that the evidence of the others will be tainted in the mind of the jury, helping the defence to obtain not guilty verdicts.

On the other, evidence of multiple incidents speculatively led against a defendant undermines the high evidential burdens of proof necessary for the sound administration of justice. Further, the publicity of a case increases the risk of the claims process being abused by those alerted to the opportunity for compensation if the accused person is eventually convicted.

Despite Lord Steyn’s opinion that “the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction” reporting of acquittals rarely makes amends for the damage caused by the reporting of the accused’s name in the first instance.

Expert Criminal Legal Advice and Defence

The law on defendant anonymity may currently seem unbalanced, however, our appreciation and understanding that this is the case means we are best placed to provide supportive and give advice about the defence in relation to such sensitive issues.

Seeking legal advice early can do much to mitigate potential reputational damage. Once instructed, we at Tuckers Solicitors take extensive and detailed instructions, investigate and forensically analyse the evidence and draft quality defence statements, all with a view to achieving the best possible result for our clients.

With vast experience in this area, our Special Casework Team understands the distress such allegations cause. By helping our client through every stage of an investigation and ensuring their case is thoroughly and diligently prepared, the trauma of going through the criminal justice system may be reduced. From initial interview at the Police Station to the trial itself, we operate a discreet and professional legal service, working closely with counsel and our clients to ensure a positive outcome whilst attempting to keep our clients away from the public eye.

Tuckers Solicitors Criminal Defence and Special Casework Team

We are ready to deliver immediate and expert legal advice and representation, with offices open 24 hours a day, seven days a week.

Please e-mail meyerj@tuckerssolicitors.com, or contact Jim Meyer on 0797 322 6586, for more information.