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Complainant and suspect anonymity: Misconceived arguments and Parliamentary Privilege 

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This blog post has been adapted from Felicity’s Huffington Post article, which can be viewed here.

In the current debate over suspect anonymity, the fundamental importance of open justice is being overshadowed by the impact on individuals who have been the subject of salacious publicity. Most recently MP Mark Pritchard against whom allegations of rape were not pursued called for a right to anonymity for suspects. Similar calls were made after the acquittal of then deputy speaker Nigel Evans. Both cases involved alleged sexual offending. No such calls are made in any other type of alleged crime. Cases involving sexual offending are recognized as those where complainants have found it hardest to make a complaint. For many, this alone makes for a presumption definitely in favour of publicity. A deeper analysis of arguments put forward in press statements demonstrates that the controversy is mainly due to sensationalist reporting of suspects who were already in the public eye and failures to fully report undermining evidence that may have led to acquittals. Frequently there is no balance in the reporting. It is perhaps no coincidence that it is almost impossible to persuade commissioning editors to produce balanced legal programming in relation to sexual offending.

Some argue (including Mr Pritchard) that, if a complainant is anonymous then so should the suspect remain anonymous but, there is a fundamental difference between complainant and suspect and arguments based on parity are misconceived. Unless and until complainants are not put under pressure not to complain and / or not to attend court, there is a balance in favour of protection, subject to the prosecution of those who deliberately lie and the court’s power to lift the reporting restriction. There are real dangers in suspect anonymity, for instance, the risk of manipulation which could lead to a cover up or the risk that other complainants who would come forward if they know they are not the only one will forever keep their silence.

Most people believe in open justice, not secrecy. UK law recognizes a qualified right to privacy which is reflected in police guidelines not to deliberately publicise who they are investigating or arresting. This is very different from a right to anonymity which would remove a public right to know.

The law should not fetter investigations which are carried out on a proper basis. It follows that suspects and defendants accused of sexual offences should not be anonymous but ought to be treated fairly. To allow blanket anonymity makes the risks of a cover up on behalf of those with, power, influence, money or status & celebrity too great. If they had such a right – when until – death? That is what effectively happened with Jimmy Savile. If they had such a right – who for – what about global online abusers where only publicity can expose them? What about child abusers and serial abusers of women? When the practical realities of anonymity are considered, most would agree that anonymity is not appropriate.

An investigation cannot and should not pick and choose its lines of inquiry based on who the suspect is or what they are accused of. Releasing details of a suspect might improve an investigation where other potential victims or witnesses are sought. Conversely, promoting publicity undermines the fairness of the process and damages individuals’ lives and reputations.

These are issues of conduct but not for changes in the law. It is impossible at an early stage to know if one complaint could lead to more victims. Publishing suspect identity should be done in a fair and balanced way and the press play a vital role by publishing information to the public. Where suspects are identified we have a system which tests the evidence by lawyers deciding charges and, if proceeded with, testing evidence in open court. A verdict becomes more acceptable when it is based on balanced information.

Of course, it has to recognised that there is a lack of balance on social media. The  internet has given us freedom. It also gives us trolls. It is arguable that a right to anonymity is unenforceable. In any event, one result of the recent sensationalism is that recent publicity openly allows readers to make conclusions on the evidence, not what is on twitter. Social media has the ultimate power of correction from those informed to those who shoot from the hip. The logical extension of a right to anonymity is sanctions against those who publish and frankly the police need to be spending their time investigating rape and sexual abuse not the press or the trolls. In the end, it comes to this: We have a right to fair and balanced policing. We have a right to know who is being investigated and prosecuted. We have a right to a fair trial. We have a right to open justice. Does the UK really need a right to suspect anonymity?

As for complainant anonymity, though some have publicly spoken against this protection, it is widely recognised as an important step in protecting those who make such complaints; the treatment of –some complainants on the internet demonstrates that such protection is needed. Between 2009 and 2012, on average, 2.5 per cent of females and 0.4 per cent of males said that they had been a victim of a sexual offence (including attempts) in the previous 12 months. In 2011/12, the police recorded a total of 53,700 sexual offences across England and Wales. There is no reliable evidence to suggest that complainant anonymity has a positive or negative effect upon reporting rates, however the benefits of complainant anonymity are clear; the public knowledge that a person has been the subject of a sexual offence could be seriously distressing and positively harmful. The general view is that the public interest is in protecting the complainant. Additionally, little or no direct empirical evidence of the impact of providing anonymity to those accused of rape could be identified. 

It is worrying then, that there have been calls for MP Mark Pritchard to use Parliamentary Privilege to name his accuser. Under the Sexual Offences (Amendment) Act 1992, victims of certain specified sexual offences are given lifetime anonymity. It applies from the moment an allegation has been made for the lifetime of the complainant in relation to ‘any publication’ and therefore includes traditional media, online media and individual users of social media websites. No publication is permitted to identify victims of certain sexual offences during their lifetime. ‘Publication’ includes social media such as Twitter and Facebook. This includes name, address, place of work, school or picture Many believe that Parliamentary Privilege- designed to protect freedom of speech and encourage and ensure free debate afforded to members of both Houses of Parliament – would allow Mr Pritchard to name his accuser with impunity.

The law is somewhat unclear as to whether this is so. Whilst it is accepted that privilege is necessary to ensure “free and frank debate” and to allow MPs to “freely represent the views of [an MP’s] constituents” it is unclear the extent to which privilege can be used – and abused. Former Attorney General Dominic Grieve QC MP gave a lecture on the topic of privilege, stating:

“in my view privilege remains of paramount importance to ensure that Parliament in carrying out its functions is independent, and that any person contributing to its work, is able to speak out without fear or favour.

“Although Article 9 is an absolute privilege, Parliament has for some time accepted in its own procedures a sub judice rule; that it should not bring up matters in debates, questions or motions which are awaiting adjudication in a court of law. This rule reflects the long-standing comity between the Parliament and the courts which means that each takes care not to intrude on the other’s territory, or to undermine the other’s authority.”

In Chaytor, the Supreme Court case about Parliamentary privilege arising from the MPs expenses scandal, the Court found that the privilege only extends to the core or essential business of Parliament. The interpretation of this in the context of complainant anonymity is unclear, however it is certainly arguable that should Mr Pritchard wish to discuss the issue of complainant anonymity, he could talk about his case and the surrounding issues without naming his accuser. The core and essential business might be legislative reform. Naming one individual is not key to that debate. Would he be naming the individual in good faith, or merely flouting the law in the same way that John Hemming MP  revealing that footballer Ryan Giggs was the “celebrity” who had taken out a super-injunction to prevent him being revealed as having had an affair.

The factual matrix of each scenario is very different.

The position is not conclusive, but unquestionably, Mr Pritchard should not seek to test the water. Ending the statutorily-protected anonymity of a complainant does not provide Mr Pritchard with any redress. In the current climate where there are concerns over establishment cover ups of abuse, perhaps Parliament should focus on the importance of victim protection and public information and encouraging the press to be more balanced in their reporting?

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