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Commons Amendment

Part of the debate – in the House of Lords at 5:45 pm on 13th November 2003.

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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 5:45 pm, 13th November 2003

My Lords, the noble Baroness, Lady Noakes, is about to leave this area of legislation. I thank her for the way in which she has conducted this brief on behalf of her party. This is her swansong, and as she flies away to a larger pond she cannot resist swiping me with her wing on the way. It is perfectly true that she discovered that I was in error in omitting the prescribed penalty from my amendment.

I had in mind to move a manuscript amendment in order to put that right, but I read a book that said that that could not be done on Third Reading—I see that the Minister is nodding her head. However, about five seconds ago I was handed a manuscript Motion in the name of the Government, so it looks as though they are about to propose one. We propose that, if this House accepts my amendment, the prescribed penalty can be put in place in another place. If that does not happen, it could be added on the Bill's return to this House.

The answers that the Government have given to the question of anonymity are that it should be open justice. However, when we talk about open justice in the field of sexual offences, we swiftly run into a brick wall, certainly with regard to rape cases. In such cases, the anonymity of the claimant is preserved. If the naming of an arrested person may bring forward more complaints from other people who may have been subject to similar conduct, the naming of the complainant may similarly bring forward other witnesses who can aver that she has made false allegations in the past. What is good for one person for open justice must be good for the other.

However, I would not for one moment suggest that a complainant should lose her anonymity in such cases. There are much larger reasons why that is so. The effect of the trial on a victim of a sexual offence is bad enough, but the effects of the publicity are far worse. Rape is indeed a terrifying crime when it is committed. It is a violation of both body and mind and is rightly visited by very harsh punishment. The guidelines for rape start at a minimum of five years' imprisonment, but sentences are usually longer than that.

The other sexual offences that are listed in Schedule 3 that are the subject of my amendment also carry heavy punishment, especially allegations of child abuse. This is a very serious crime with very serious effects, but it also has a peculiarity that other crimes do not have. Nobody complains that their house has been burgled when it has not. However, in my experience and, I am sure, in that of the Minister, in sexual cases complainants do not always tell the truth. I have experience in my capacity as an advocate of a daughter bursting into tears on returning home when asked by her parents why she has been out so late. She is swiftly taken to the police with a false complaint of rape. I also knew a woman who fell out with her partner and used the police to punish him, and another woman who was seduced into a consensual act but very much regretted it later. Those are circumstances that are peculiar to sexual offences when complainants are not always truthful.

An acquitted defendant carries a very heavy burden, as the noble and learned Lord, Lord Ackner, pointed out. There may be permanent damage to his reputation, to his family and to his state of mind. I have great sympathy with the proposal in the noble and learned Lord's amendment for anonymity to remain for all time for an acquitted defendant. However, we must take one step at a time in this area. We have focused on what I regard as the most pernicious aspect of the present time, to which the noble Baroness, Lady Noakes, referred—the pernicious practice of the leaking of names of arrested persons to the press, sometimes for cash.

The noble Baroness referred to the Hamilton case. The Hamiltons had their names leaked to the press before they ever arrived at Barkingside police station in the first place. When they emerged from that police station 90 minutes later, they stumbled into a barrage of cameras and reporters. From there they were forced to go on the offensive. We now know beyond peradventure—because the complainant has been convicted of attempting to pervert the course of justice—that the complaints made against the Hamiltons were completely untrue. In our amendment, we have attempted to deal with that situation; namely, the leaking of the names of arrested persons before charge and the publication of them in newspapers. Our amendments seek to make it an offence for the editor or publisher of a newspaper or the controller of a programme to publish the identity of an individual before a charge has been brought.

However, we recognise that there may be two exceptions to that, which are included in paragraph (3) of Amendment No. 1C. The person against whom the allegation has been made may waive his right of anonymity for the very reason that I suggested at the beginning of my remarks: he believes that other people may come forward to say, "This woman is a liar".

Alternatively, it may be that the police have reason to suppose that the person who has been caught is a serial rapist. Under paragraph (3)(b) of Amendment No. 1C, they may apply to a magistrates' court for the section to be disapplied, giving proper grounds for it and being subject to judicial control. In our view, those two exceptions to the basic anonymity of the defendant deal with the problems outlined by the Minister on the earlier occasion. In due course, I shall press this amendment.

The Government say that we have a voluntary scheme, that we have the Press Council and that the police have disciplinary powers. Those have not worked in the past. If the Government want to try a voluntary arrangement, perhaps they could defer bringing the clause into operation while they have that attempt. But the last pint would have been pulled in the last chance saloon.