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14 Nov 2016

New proposals on victim anonymity: a step too far

2016 is turning into a troubling year for those accused of sexual offences. The well-intentioned drive by campaigners to protect victims from the traumas of the criminal justice system is resulting in a raft of populist measures which further curtail defendants’ rights. Following hot on the heels of (a) the national roll-out of pre-recorded cross-examination of complainants (meaning, in practice, no cross-examination on the various materials the CPS has disclosed late), and (b) calls by politicians post-Ched Evans to prohibit entirely cross-examination on matters pertaining to previous sexual behaviour (which have largely failed to consider the stringent limits already in place), comes a proposed amendment to the Policing and Crime Bill currently before Parliament.

This amendment is designed to stop suspects in alleged “stranger rape” cases learning the identity of the complainant, where it is reasonable to assume that such a disclosure would put the complainant at risk of harm. Leaving aside the atrocious drafting of the amendment – the withholding of “identity” would allow the police to withhold all information about the complainant; the police would not be entitled to disclose the identity at any stage in proceedings, but no equivalent limitation is imposed on the CPS. The police could also refuse to disclose the identity of a complainant who is personally known to the suspect (i.e. a man accused of sexually assaulting his step-daughter without being told which one) etc. – if this was passed into law it would be an unacceptable and unnecessary infringement on the rights of criminal suspects.

Regarding the pre-charge stage, there is currently no obligation on police to reveal the name of the complainant to a criminal suspect. The contents of disclosure is at the discretion of the investigating officers, and in practice need only be adequate to ensure the suspect has sufficient information to comment on the allegation. In cases of stranger rape, this need be no more than details of the location, circumstances, and sufficient physical description. Prohibiting the police from revealing the identity of a complainant through primary legislation is therefore wholly unnecessary.

The drafting of the proposed amendment makes clear that it would also apply after charge, and the intended effect is plainly to ensure that neither the defendant, nor his lawyers, would ever discover the identity of the complainant. This is significant because the first question on the jury’s mind in most sexual offences trials is: why would the complainant invent the allegation? A defendant’s lawyers cannot begin to suggest answers without any knowledge of who the complainant is. Provision does already exist in criminal law for witnesses to be granted anonymity (under the Coroners and Justice Act 2009). However, when comparing this new proposal to the existing law, there are three aspects which are particularly troubling:

Firstly, and perhaps most importantly, it is a necessary condition of the present law that the effect of witness anonymity “would be consistent with the defendant receiving a fair trial”. If it is not consistent, no such order will be made. An accused’s right to a fair trial includes the right (enshrined in Article 6(3) of the European Convention of Human Rights) to examine witnesses against him, which includes the importance of testing the reliability of a witness’s evidence. A number of cases in the European Court of Human Rights have emphasised that there must be sufficient justifiable reason for witness anonymity to be granted, and that the handicaps thereby faced by the defence must be counterbalanced by sufficient judicial protections. The right to a fair trial apparently has no place in this proposed law.

Secondly, the proposed test for ordering anonymity is extremely diluted. The present rules on witness anonymity orders post-charge specify that they will only be made where it is necessary to protect safety or prevent real harm to the public interest. (There are further stipulations regarding the interests of justice considering the importance of the witness’ evidence and whether they would testify without the order.) Compare that to the proposed new test of “reasonable to assume that such a disclosure would put the victim or witness at risk of further harm”. The bar is set so low that in reality the police could choose to apply it in every single allegation of sexual offences. Given the range of bail conditions that already exist to protect complainants from contact by defendants, and the Article 6 considerations, which require a balancing exercise between the rights of victims and the rights of defendants, the test of necessity is plainly the appropriate one. It is hard to imagine a court upholding the “reasonable to assume” test as compatible with our Article 6 obligations.

Thirdly, the decision as to anonymity is one to be taken by the police. The amendment makes no provision for judicial oversight, and does not allow for any judicial intervention. Allowing those on one side of a criminal case to make unilateral decisions which materially affect the conduct of the trial is inimical to our adversarial system, where judges act as referees between the prosecution and defence. This would be a significant and unprecedented shift of power into the hands of the police.

The prosecution of sexual offences is rapidly becoming a situation where policy is made at the behest of campaigners. Upholding principles such as innocent until proven guilty, and the right to a fair trial, do not appear to matter. There are already a large number of measures to protect the safety of victims of sexual offences. Any further measures (if necessary) must be proportionate and justifiable. This proposal goes way too far. When this amendment is debated in the House of Lords later this month, our representatives should ensure that this damaging measure does not become part of our law.

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