The Never-Ending Story: The Defendant Anonymity Debate in the UK

With the interest in the debate following the recent Channel 4 documentary and the legislative changes elsewhere, it seems time to put the debate to rest in the UK and give the arguments in favour the serious consideration they deserve says Chloe Hanna.

The debate over whether persons accused of sexual offences should have their identities anonymised comes up time and time again. Recently, that debate has been reignited following the broadcast of Channel 4’s documentary, The Accused: National Treasures on Trial  late last year. The documentary recollected the stories of Sir Cliff Richard, Neil Fox, and Paul Gambaccini who were accused of historical sexual offences a decade ago. All three were dropped from investigation or found not guilty. However, as the documentary shows, the repercussions of the allegations still continue to impact their lives to this day. It importantly captures what a celebrity figure might endure, including family and career difficulties and damage to reputation. One thing that it does not make clear is that the debate and arguments around anonymity for persons accused of sexual offences are more nuanced than simply protecting celebrities from the press and public opinion.

In contrast to complainants of sexual offences, who have a long-standing right to lifelong anonymity, the identities of persons who are accused can be publicised. Defendant anonymity for rape trials was originally granted at the same time complainant anonymity was first introduced, under the Sexual Offences (Amendment) Act 1976, but the defendant anonymity provision was later abolished in 1988. Since then, the issue of defendant anonymity has been somewhat of a never-ending story, having been frequently debated in the UK Parliament, for example:

• 1998: A Proposed amendment to the Crime and Disorder Bill 1998 would have provided anonymity until conviction.
• 2003: A move by Lord Ackner in the House of Lords to extend anonymity to defendants during the passage of the Sexual Offences (Amendment) Bill 2003.
• 2009: The Stern Review considered the need for defendant anonymity as a matter ‘linked’ to the issue of false allegations of rape but made no recommendations.
• 2010: The Conservative-Liberal Democrat coalition pledged to ‘extend anonymity in rape cases to defendants’ and commissioned the Ministry of Justice Report, Providing Anonymity to Those Accused of Rape: An Assessment of Evidence.
• 2019: Lord Paddick’s private member’s bill, Anonymity (Arrested Persons) Bill, would have anonymised the accused until charge.

Despite the issue being debated many times, there has not been any legislation produced by Parliament on defendant anonymity since the repeal in 1988.

Meanwhile, elsewhere there appears to be a move to tighten publication restrictions on the names of the accused in sexual offence cases. In 2021, the Isle of Man implemented the Sexual Offences and Obscene Publications Act, offering anonymity until the point of conviction in all sexual offence cases. Following a government review, the Republic of Ireland (which already anonymises the defendant in rape cases) is following suit with plans to extend their anonymity provisions. Further, Northern Ireland legislated last year to provide anonymity until the point of charge in the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022. It seems that it is time to reconsider the issue more seriously, taking note of the arguments in favour and against.

One reason to be wary of re-introducing defendant anonymity is the existence of open justice. This important principle means that justice should not only be done, but should also be seen to be done. In practice, this means the public know the names of the parties as well as other particulars of criminal cases. That being said, there are other exceptions to open justice, complainant anonymity for sexual offence cases being one, so the principle alone should not bar the extension of anonymity to the accused. Open justice must be balanced against the rights of individuals.

Arguably in comparison to the first-time defendant anonymity was in place, the growth of mass and social media has increased the potential impact of allegations and gives privacy rights more prominence in this balancing exercise. In addition, the presumption of ‘innocent until proven guilty’ also plays a key role in the adversarial criminal justice system but is adversely affected by publicising the names of the accused. An accusation can lead to suspicions, even despite an acquittal. Some say there is ‘no smoke without fire’, resulting in the accused being treated negatively by others and suffering from family and career difficulties as well as reputational harm. As the Channel 4 documentary shows, time does not erase the stain of the allegation.

Another argument is that there must be a strong justification to support anonymity for the accused in sexual offence cases and not for other serious offences, like murder. Again, one can draw a comparison to the fact the complainant is uniquely anonymised in sexual offence cases and not in others. However, it is too basic an argument to suggest that providing parity between the two means the defendant should also be anonymised. Rather, the focus should be on the enhanced stigma, shame and taboo around sexual offences trials. The heavy stigma justifies complainants being anonymised and it should be recognised that allegations may also potentially impact those accused. Although, more research is required on this area.

Possibly the greatest concern relates to how anonymity might affect prosecutions and the experience for the complainant. Publication of the accused’s name may enable other complainants or witnesses to come forward, particularly in the case of serial offenders. While this is important, it is also of note that any provision of anonymity is unlikely to be absolute and would probably facilitate the lifting of anonymity where there is reasonable belief the accused is a serial offender. It is often also argued that defendant anonymity may discourage complainants coming forward. This is tied to the argument that anonymity would perpetrate the erroneous myth that many allegations are false.

Defendant anonymity, however, can also be seen as a positive from the point of view of complainants. By anonymising the accused there is a reduced risk that the complainant’s identity can become known through jigsaw identification. This is true not only for high-profile cases involving celebrity figures, but also for those who live in small towns. Looking to the Republic of Ireland’s experience, the Rape Crisis Network Ireland has found complainants to be ‘generally very glad’ to be reassured that the accused’s identity is not made public before conviction.

The debate on defendant anonymity is a complex one, with arguments both in favour of and against anonymising the accused in sexual offence cases until conviction. With the recent interest in the debate following the Channel 4 documentary and the legislative changes elsewhere, it seems time to put the debate to rest in the UK and give the arguments in favour the serious consideration they deserve.

 

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