Monday, 18 February 2013

Open Justice and Equality

Maura McGowan writes:

Maura McGowan, chairwoman of the UK Bar Council, has reignited the debate about anonymity in sex crime trials.

Under the current law, complainants in rape and sexual offence trials automatically receive anonymity, but the accused are named. McGowan believes that, because these crimes ‘carry such a stigma’, those accused of them should be granted anonymity, too. ‘Until they have been proven to have done something as awful as this, I think there is a strong argument… to maintain the defendant’s anonymity, until he is convicted’, she said at the weekend.

The question of who, if anyone, should receive anonymity in sex offence trials has been going on for some time. On one side there is a lobby predominantly made up of women’s rights advocates, which opposes the extension of anonymity to the accused. And on the other side there are those who argue that it’s unfair that only complainants are granted anonymity, and who call for this ‘right’ to be given to defendants as well. Which side is right?

The strongest argument in favour of extending anonymity to both parties in sex crime trials is simple - equality. As some legal observers argue, it violates equality to treat the accused and the complainant differently, especially because the arguments used to justify anonymity for the complainant apply at least as strongly to the accused. If we accept that a woman’s reputation is damaged by being named as the complainant in a rape trial, the accused’s is far more damaged, and sometimes it is not completely restored even by an eventual acquittal.

Even more worryingly, granting anonymity to complaints may lead to a situation where the defendant’s reputation is too damaged to receive a fair trial. The complainant’s anonymity may sometimes exacerbate the hostile publicity that the suspect attracts, because she is able to make any allegations that she chooses, protected by the veil of anonymity, while the accused is hampered in his response.

However, the argument against extending anonymity is even stronger. This is: concern for open justice. As Barbara Hewson, a UK barrister specialising in human rights, has put it: ‘It is not in the public interest for anonymous prosecutions to take place. The public have the right to know who is being prosecuted in their name.’

Open administration of the law is a fundamental principle of both democracy and natural justice - as expressed in the maxim that justice should not only be done but should be seen to be done. Nowhere is this principle more important than in the criminal justice system. Where the state is potentially depriving individuals of their liberty, we need to be able to keep a check on who these individuals are and what they have done.

Like many of the best principles of the legal system, the principle of open justice is as important in ensuring conviction of the guilty as it is in ensuring acquittal of the innocent. Campaigners point out that when a suspect’s name is published, this might encourage other witnesses to come forward. Usually, they envisage that these would be witnesses for the prosecution, but publicity could just as well result in witnesses to exonerate the accused. Also, the glare of publicity is one of the best guarantees that state authorities such as the police will do their job as sensibly, speedily and impartially as possible.

If anonymity were extended to rape defendants there would be no logical reason for refusing anonymity to other defendants; indeed, the Sun newspaper has previously called for anonymity for everybody accused of a serious offence prior to acquittal. But why limit this to serious offences? Many would argue that there is a far greater public interest in knowing who is being tried for murder than for shoplifting. Furthermore, even a minor charge can damage somebody with an unblemished reputation. If we set off down this path, the criminal justice system could end up shrouded in mystery.

There is one certain way to combine these twin principles of open justice and equality - remove anonymity from rape complainants as well as defendants.

The arguments in favour of anonymity for rape and sexual abuse complainants do not stand up to scrutiny, especially when contrasted with the powerful pull of open justice and equality. The main justification given for anonymity is that being named would deter women from reporting rape. But what is the evidence that rape is currently underreported? Indeed, given that from the mid-1980s to the recent period the number of complaints has risen eightfold while the number of convictions has little more than doubled, there could even be reason to believe that women are reporting rape in situations where there is little likelihood of a conviction.

Moreover, given that the increase in reported rapes is mainly accounted for by allegations of acquaintance rape - where the accused is known to the complainant - anonymity will only occasionally be a genuine option for the complainant.

We should not facilitate the small number of women who make malicious allegations of rape by granting them anonymity - we should know their names, and if removal of anonymity discourages them, so much the better.

As for the vast majority of genuine rape complainants, they have nothing to hide and nothing to be ashamed of. Rape victims should not have to feel stigmatised, and a woman’s reputation should not be considered damaged by her being a rape complainant. But ironically, giving rape complainants the kind of anonymity that we do not grant to victims of other crimes actually reinforces the stigma attached uniquely to rape victims.

The sooner we treat rape in the same way as other serious crimes, the better for both the defendant and the complainant.

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