My Lords, we have Amendment 187 in this group but, before I address that amendment, I would like to speak briefly to Amendment 182. In Committee, some noble Lords asked why sexual offences should be a special case when it comes to pre-charge anonymity. Amendment 182 addresses that question by including all offences. However, there are three reasons why we cannot support this amendment. As I will set out shortly, not only do we believe that sexual offences are a special case, but the law acknowledges that they are a special case in which the normal principles of free speech and open justice are restricted. We believe that these are important principles that should be restricted only in those cases where there are specific reasons for doing so. In sexual offences cases alone, the identity of the complainant or victim is protected. For similar reasons, we believe that the identity of the accused should be protected up until the point of charge.
Secondly, in Committee, we also heard compelling reasons why the accused should be able to lift the ban on publicising his identity, if he wishes. The accused may wish to complain at the injustice of his case or appeal for alibi witnesses to come forward, for example. Amendment 182, as drafted, would not allow that.
The third reason is that we do not believe the magistrates’ court is the right place for such a decision to be made. We believe that such an important decision should be considered by a judge of a higher court.
Amendment 187 is substantially different from the amendment we moved in Committee in a number of respects. First, it is as close as possible to the wording of the legislation that currently protects complainants or victims in sexual offences cases. Secondly, it allows the accused to lift pre-charge anonymity at any stage if he wishes to do so. Thirdly, as well as specifying the minimum rank of police officer who can make an application, and the Crown Court as the appropriate court for hearing an initial application from the police for the ban to be lifted, it would specifically require the judge to have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences committed by the accused. We believe that such cases will be rare and such applications will be exceptional, as I will explain.
We had a long debate on this issue in Committee, and I do not want to make my case again as it is a matter of record. However, I want to address the remarks made by other noble Lords in that debate, having had an opportunity to reflect on what they said. I will address head on, and at an early stage, the shocking picture that is emerging of allegations of historic child abuse at football clubs. Most of the
initial allegations that attracted so much publicity, and gave rise to the unprecedented number of further allegations being made across the length and breadth of the country, involved the former football coach Barry Bennell. Bennell was convicted of sexual abuse offences in the United States in 1994, and convicted of further sexual offences in the United Kingdom in 1998, and again in 2015, for which he served terms of imprisonment. These are not cases where pre-charge anonymity would have had any adverse effect. Indeed, I suggest that these cases point to a change in culture where victims of sexual abuse are more willing to come forward. Therefore, they undermine to some extent an argument against pre-charge anonymity on the grounds that victims need to be given confidence to name people who have been accused but not yet charged.
The noble Lord, Lord Pannick, made this point in Committee—that publicity can lead others to come forward with supporting evidence that helps to make the case against a person who is rightly accused. But what if somebody is not rightly accused? What if somebody like Nick comes forward and makes highly damaging and groundless allegations against individuals? Is it right that these allegations and the identity of the accused are put into the public domain? How do we safeguard against others coming forward with similarly damaging and groundless allegations, particularly when the details of the allegations are made public? There is a view that the law on similar fact evidence has gone too far and that this can result in convictions based on multiple uncorroborated allegations, all of which could be false. I am not legally qualified to comment, but surely a balance needs to be struck between shoring up uncorroborated allegations by trawling for others and protecting the reputation of the accused.
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The noble Lord, Lord Pannick, suggested in Committee that victims do not come forward because they are fearful that no one would take them seriously. That argument might be intuitively attractive, but is it born out in practice? Some cite the case of Jimmy Savile. Victims did come forward and report their concerns to the police—but they were not believed, because of who they were and because of who he was. That is, or was, a cultural issue within the police service, which hopefully has been addressed, so that victims are believed more than historically has been the case.
The noble Lord, Lord Pannick, suggested that it might be only on hearing that an allegation is being taken seriously that other complainants gain the confidence to come forward. By the same argument, surely victims will be discouraged from coming forward when they hear about the allegations against, say, Harvey Proctor, Lord Brittan, Lord Bramall, Sir Cliff Richard, Paul Gambaccini or against the teacher and doctor of whom my noble friend Lady Brinton spoke in Committee. When all these allegations are taken seriously and come to nothing, what is reassuring to other complainants about that?
The point at which other victims can feel confident about coming forward is when a decision has been made to charge someone and put them before a court.
That is when they should have confidence that their particular case, involving the same defendant, will be taken seriously. As I said in Committee, there may be exceptional cases where police might need to publicise the identity of the accused—but this must be authorised by a judge, as the amendment allows. However, there is evidence that pre-charge anonymity can give rise to false allegations being made, taking up valuable police time investigating matters that have no substance.
The second objection of the noble Lord, Lord Pannick, was that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. We have redrafted the amendment so that the identity of the accused cannot be made public without the accused’s consent.
The noble Lord’s third argument—that you can prevent publication of the name of the person concerned but you cannot prevent people in the know from gossiping—applies equally to preventing publication of the identity of the victim of sexual offences. Is the noble Lord suggesting that this is removed for the same reason? The issue of legal protection from publication against a background of rumour and speculation has recently been decided in the case of PJS and YMA. I intend to say no more on this issue as I believe it is not a serious objection.
The noble Lord’s fourth argument is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not the police were making the accusation. It seems to suggest that any accusation of sexual offence would prevent publicity—but how far does this go? That is what the noble Lord asked. The simple answer is: as far as the existing protection for victims of sexual offences goes. This is why we have taken the wording of our amendment from the existing legislation.
The noble Lord’s final objection, like his second, has been dealt a fatal blow by the inclusion of the words, “without the accused’s consent”. The person concerned can tell the world that he has been vindicated, and the press can report that a false allegation has been made, if the accused so wishes.
The noble and learned Lord, Lord Judge, cited a murder case in which he was involved where alibi witnesses came forward post-arrest and pre-charge. Of course, murder cases would not be covered by this amendment, and alibi evidence is not often crucial in sexual offence cases. None the less, it would be for the accused, advised by his lawyer, to assess the benefits of alibi witnesses coming forward, set against the damage to reputation from adverse publicity, and to decide whether to voluntarily put the details of the case into the public domain.
The noble and learned Lord raised cases of what have come to be known as cot deaths. Academic research cited by the noble Lord, Lord Lexden, in Committee, suggested that there had been a shift in culture towards a presumption of guilt in sexual offence cases, which is all the more surprising when set against a culture of losing trust in the police. I suggest, albeit in the absence of any academic research of which I am aware, that there has also been a shift in culture
towards the presumption of innocence in sudden infant death cases following the miscarriages of justice that have happened over recent decades.
Conversely, there is evidence that the victims of Jimmy Savile who came forward and were not believed, and the many who have come forward only since his death, tend to shift public perception in the opposite direction: that is, toward the presumption of guilt in sexual offence cases. I am not familiar with the source cited by the noble Lord, Lord Lexden, but The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices, by Carolyn Hoyle, Naomi-Ellen Speechley and Ros Burnett of the University of Oxford Centre for Criminology, says:
“It is argued that for some years the benefit of any doubt is now more likely to be given to the accuser … Even in cases where the evidence only consists of testimony from the alleged victim and is strongly rebutted by the alleged perpetrator, the moral imperative not to ‘let down another victim’ or to leave a possible sex offender free to cause further harm may be compelling … While this must, logically, reduce the chances of guilty persons avoiding prosecution (‘false negatives’), it also risks increasing the likelihood of innocent people being presumed or found guilty (‘false positives’)”.
The noble Lord, Lord Pannick, said in his eloquent speech in Committee:
“The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed”.—[Official Report, 16/11/16; col. 1454.]
Obviously, there are two sides to the noble Lord’s coin, as the article points out. Blackstone, famously, is quoted as saying that,
“the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”.
Innocent people are suffering, as the noble and learned Lord, Lord Judge, acknowledged. Sir Richard Henriques said in his report:
“Present arrangements … have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters”.
I wish to make a wider point here. The world has changed significantly since the Jimmy Savile case and the report into child sexual abuse in Rotherham in terms of the presumption of innocence. That is why I suggest that it is not a sustainable argument to point out what has happened in the past.
The Minister argued in Committee that the coalition Government looked at pre-charge anonymity in sexual offence cases and that Parliament had considered the issue prior to that and rejected it. In both cases, they examined anonymity for those charged with rape—which is a very different thing. Attitudes to sexual offences have moved on since then. It similarly undermines the position of the Labour Front Bench. In Committee the noble Lord, Lord Rosser, rather unconvincingly explained:
“It has not been our policy … to support anonymity for rape suspects before they are charged or indeed those suspected of other sexual offences”.—[Official Report, 16/11/16; col. 1463.]
In addition to the Jimmy Savile case, other cases, notably that of Rolf Harris, have called into question people’s judgments or the assumptions they made about people who they thought they knew and trusted. The legal principle of being innocent until proved
guilty is firmly in place as far as the courts are concerned, but the evidence increasingly is that that is not what the man or the woman on the Clapham omnibus thinks—nor, it would appear, what some police officers think, according to the independent report of Sir Richard Henriques.
I addressed the point in my response to the debate in Committee, but it is worth repeating, that the amendment is not based on the belief that sexual offences are more or less serious than other serious crimes such as murder. The argument is that they tend to be different in nature, in terms both of public perception and the evidence available. Very often it is one person’s word against another’s and, prior to the accused being arrested or interviewed under caution by invitation, the allegation is only one side of the story, as my noble friend Lord Marks of Henley-on-Thames stated in Committee. How can it be right for publicity to be given to an allegation made against an individual without corroboration when the accused has not even been given the chance to explain himself to the police? That is why sexual offences are very different and not—as the noble Lord, Lord Rosser, suggested in Committee—because a person making a complaint in respect of a sexual offence was not to be believed in the same way as someone making a complaint against another individual for an offence such as child cruelty.
In cases of child cruelty there is a child showing evidence of cruelty who is in the care of the accused. The weight of evidence is different from that in many sexual offence cases. If in the small minority of sexual offence cases there is physical evidence of a violent rape, with forensic samples that match the accused, a judge would not hesitate to lift pre-charge anonymity. It has nothing to do with the trustworthiness of the complainant at this initial stage and everything to do with establishing the facts to the point where it is safe to make the allegation public. Of course, I accept that in some cases, particularly where consent is an issue, trials take place without corroboration because the victim is clear, articulate and convincing and the accused in interview is evasive, hesitant and unreliable. However, at the point of charge the accused’s details will be made public—and before, if a judge agrees.
The noble and learned Lord, Lord Judge, was also concerned that people might be arrested and held and no one would know that they were there if there was a news blackout. The Police and Criminal Evidence Act is very clear and restrictive as to when someone can be held incommunicado and when someone in custody can be denied legal advice.
In Committee the Minister quoted independent research mentioned in the other place in 2010 which found that there was,
“insufficient reliable … evidence on which to base an informed decision on the value of providing anonymity to rape defendants. Evidence is lacking in a number of key areas, in particular, whether the inability to publicise a person’s identity will prevent further witnesses to a known offence from coming forward, or further unknown offences by the same person from coming to light”.—[Official Report, 16/11/16; col. 1466.]
That is the case against pre-charge anonymity. The Minister acknowledges that there is no evidence to support it.
Secondly, there is now sufficient reliable evidence, including the independent report by Sir Richard Henriques, that considerable suffering is being inflicted on innocent people who are falsely accused of sexual offences.
The Minister concluded Committee stage by saying,
“I am satisfied that … adequate provisions already exist in current legislation and practice to safeguard those accused of a crime without the need for legislating for pre-charge anonymity”.—[Official Report, 16/11/16; col. 1468.]
The most recent independent inquiry by Sir Richard Henriques concludes that suspect identity in sexual cases pre-arrest needs to be protected by legislation and criminal sanctions. The only reason he did not go as far as recommending pre-charge anonymity is because:
“I consider it most unlikely that the Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation could suffer”.
Are we really putting pain, suffering and even the suicide of those falsely accused ahead of tabloid newspaper circulation?
If any noble Lords were in doubt about the impact of being falsely accused of sexual offences, they should look at the report on Saturday on the BBC, quoting the Equality and Human Rights Commission, which found serious gaps in the care of people detained by the police. The EHRC report shows that there were 128 apparent suicides between April 2009 and March 2016 of people accused of sexual offences who had been detained at police stations. The commission concludes:
“Sexual offences, especially in relation to children, are particularly taboo and lead many offenders to feel high levels of shame and experience high levels of social exclusion”.
Imagine if those allegations are without foundation.
Sexual offences are a special category of crime and those accused should be given statutory protection from having their names published or broadcast up until the point of charge, unless a judge rules otherwise. I ask the House to support Amendment 187 and to reject Amendment 182.
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