Clause 2 - Anonymity of defendant in rape etc. cases
Sexual Offences Bill [Lords]
4:00 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
We now come to a section of the Bill that we understand to be contentious. It is the Government's intention, as I understand it, to
remove clause 2 and argue that it should not stand part of the Bill. There has been much discussion and debate—this seems to have been almost the principal topic of the debate foreshadowing this House's consideration of the Bill—on whether there should be anonymity for defendants in rape cases and what the scope and duration of that anonymity should be. Should it be simply for the duration of the charge or last throughout the trial? If there is such an intention, how should the legislation be drafted? The drafting is by no means free of complexity. The House of Lords—following Lord Ackner's suggestion, I believe—inserted clause 2 in what I acknowledge to be a somewhat simplified form. No doubt it was designed to alert the Government to their lordships' concern about the matter and to invite the Government to come up with proposals of their own.
In considering the clause, we must go back to principles. Over the past few weeks, I have discussed some of the issues with Committee members, and I say at the outset that this is not a matter that I find at all easy. The basic principles I find very easy indeed: it is desirable that all aspects of the criminal justice system should take place publicly, which means that defendants and witnesses are publicly identified throughout the court process. As much of the court process as is possible should be open to public scrutiny, as that reassures the public that what they are seeing is prosecution, not persecution, and that things are taking place in a fair manner.
However, we know from example that it is not always possible or indeed desirable to try to achieve that. We know, for instance, that there might be cases involving state security where some of the evidence cannot be given in public, but it is nevertheless in the public interest that there should be a prosecution. Sometimes, the identity of witnesses needs to be protected because they are at great risk either in their work or of being attacked if their identity and place of residence is made known.
In rape cases, we have taken matters a stage further. It is widely acknowledged that the trauma of giving evidence in court is such that it is difficult to persuade victims or alleged victims of rape to come and give evidence about serious criminal offences. Therefore, notwithstanding the basic rule that I have just spelled out, it is in the public interest that such people should enjoy anonymity in almost all circumstances. I do not suppose that anybody on the Committee would want that principle reversed; it was introduced some time ago and it appears to be essential if this serious type of case is ever to get to court.
I shall move on to remarks about the position of defendants. I am aware from having read the House of Lords Hansard that some argue that, in view of the fact that complainants have anonymity in rape trials, it is only fair that the defendant should have anonymity in those trials. I do not agree with that, but I understand the force of the argument, and I suspect if one went outside the House and spoke to members of the public, one would meet people who argued that view forcefully. I do not take that view because I acknowledge, for the reasons that I gave a few minutes ago, that such equivalence cannot always be achieved.
We do not say that somebody who is tried under the Official Secrets Act must have anonymity simply because some of the witnesses in the trial who come forward to give evidence have anonymity.
That issue focuses my mind on the peculiar problems that rape allegations pose, which appear to fall into several categories. First and foremost, we know that rape allegations have the unique and unfortunate distinction of having an astonishingly low conviction rate—I can think of few other offences that come into that category, although there may be one other. All sorts of reasons can be adduced for that, and we have argued them. There are anxieties that it reflects the fact that many guilty people are getting off, and it is argued that the rules and tests of evidence should be changed—indeed, we are in part doing that in the Bill. As I have said, I am not sure that that will make a huge difference, but I hope that it makes a positive contribution to securing justice in rape trials.
Nevertheless, we must face the fact that the vast majority of people who have an allegation of rape brought against them are acquitted, as a result of societal changes in the nature of the allegations; as has been highlighted, rapes now overwhelmingly concern not a stranger but parties who are acquainted. Having been acquitted, they are entitled to all the benefits of that acquittal, including, if they do not have other convictions, being regarded as being of good character, and being able to get on with their life.
However, the reality is that many who have been acquitted have their life ruined by such allegations, and in a very few cases, it transpires that the allegations were made maliciously. We face a great problem. That highlights the question whether it would be in the public interest and the interests of justice in such circumstances for defendants in rape trials to have anonymity. In that case, we would have to ask for how long and in what circumstances that would be so, and what exceptions there might be.
It is worth remembering that there was a period of 12 or perhaps 11 years—I can never remember the precise dates on which legislation came on or off the statute book—when defendants in rape trials did enjoy anonymity. It overlapped only slightly with my period at the Bar, but certainly in my first few years—