Clause 2 - Anonymity of defendant in rape etc. cases

Sexual Offences Bill [Lords] – in a Public Bill Committee at 4:00 pm on 9th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 4:00 pm, 9th September 2003

I beg to move amendment No. 23, in

clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert

'a right to anonymity, from initial accusation to conviction, unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 24, in

clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert

'a right to anonymity until charged.'.

New clause 1—Anonymity of suspects and defendants in certain cases—

'(1) Where an allegation has been made that a person has committed an offence listed in Schedule 3 to the Sex Offenders Act 1997, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and if that person is charged.

(2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely—

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence.'.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

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—

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

That, indeed, is what I recollect. My only reason for not being specific was that I wondered whether the Act was on the statute book for some months before it was implemented.

I remember seeing rape trials taking place in my early years at the Bar in the 1980s. I certainly was not conscious that there was a great impediment to justice in granting anonymity to rape defendants—until, of course, they were convicted, when, naturally, their anonymity disappeared.

It has been suggested that there may be cases in which anonymity seriously hampers police investigations, because it prevents an opportunity for other people to come forward, as they will not have heard that the defendant is standing trial. I accept that

that may sometimes happen. That is why I also always accepted that there must be exceptions to anonymity rules when the interests of justice require it. Another example is that of a defendant who does not surrender to bail and goes on the run. It is easy to see that in those circumstances his anonymity should be forfeited for the sake of ensuring his early arrest.

I strongly feel that there are powerful arguments—and they certainly seem to have registered outside the House among the public—as to why defendants should have anonymity. There are then arguments about how long they should have anonymity for. Because of the way that the Bill has come to us from the House of Lords, we are really talking about anonymity between charge and conviction or acquittal.

There are arguments—I gather that the Home Secretary is taking an interest in the matter—that the principal mischief lies not in the trial process, but in the period prior to charge, and I do not think that that period would be covered by the Bill. Perhaps the Committee should consider that, although drafting such legislation could be difficult. I have heard it suggested that the Home Secretary wishes to come up with a formula by which the police agree not to tip off journalists about investigations of individuals suspected of sex offences.

I have no idea whether that approach would be successful or not, but I am not optimistic. I am afraid that there is a long history of the police tipping off journalists—often, I suspect, for reward. It is a scandalous situation, but one that I believe is very difficult to control. The only way to exercise such control would be to restrict publication; the reality with anonymity in any case is that there will always be people involved in the case or close to it, or relatives or neighbours, who know very well that a person is about to stand charge for a rape allegation. That certainly happened in the 1980s; anyone sitting in court would have been likely to find out. However, the absence of publicity was certainly very helpful in enabling someone who had been acquitted to rebuild his life.

While I understand that the Government are unsympathetic to the Lords amendment and wish to delete it, for my part I am broadly somewhat sympathetic to it and would like to see whether there is some way by which the spirit or intention of the clause could be retained.

There are two ways in which that could be done. The first is amendment No. 23 and the second is amendment No. 24. Amendment No. 23 would retain

''a right to anonymity, from initial accusation to conviction''—

so the anonymity would apply beyond charge—

''unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.''

That would make allowance for the exceptions, which I fully acknowledge might arise, either because of a defendant's behaviour—running away, failing to surrender to bail—or because the prosecutor could go to the judge and say, ''This is a very unusual case. We are satisfied that at least four people have now

made allegations against the defendant. We believe that publicity, because of the nature of his offences, might well attract more. It is an unfortunate matter, but could we please be allowed to reveal his identity?'' I would be perfectly prepared for a judge to perform such a balancing exercise.

The second amendment, amendment No. 24, is an alternative. The intention is that it might provide—although I suspect that because of the way it is drafted it would not provide—the possibility of having anonymity between the time that the investigation commences and an allegation is made, and charge.

I look forward to hearing not only the Government's position on clause 2, but their position on anonymity generally. At the moment, the amendments have been put forward in, I hope, a conciliatory spirit and I hope that the Committee will be able to grapple with them. It is a very important topic.

If we get no joy from the Government on the issue, we may be minded to resist the deletion of clause 2, because it is an issue of great importance. However, I am also willing to listen carefully to what the Minister has to say, and to other Committee members who have arguments to the contrary. I am already well versed in such arguments; I have had an interesting e-mail correspondence with the hon. and learned Member for Redcar, which was published in somewhat truncated form in The Guardian. The arguments that she put forward are valid; I make no attack on their validity. Equally, however, I believe that there are arguments to the contrary.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I hope, Mr. Gale, that it is in order for me to address new clause 1 first.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. Absolutely, but the two amendments and new clause 1 have all been taken care of.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I did not want to incur your wrath, so I thought, Mr. Gale, that I had better check first.

Clause 2 is unsatisfactory, but we still wish to address the question of anonymity. We found that it was difficult to table appropriate amendments. Our preference is for new clause 1 to replace clause 2. We have reached that position by examining all those arguments—one listens along one route and it sounds very convincing, and then one listens along the other route. There is a balance to the arguments but the balance tips in favour of anonymity up to the point of charge. That is the point that we want to make comprehensively.

With its reference to ''rape etc.'', clause 2 has a fundamental weakness, whereas our amendment covers the whole range of sexual offences. Once one gets into the realm of sexual offences against children, there is considerable support among a range of bodies and people for anonymity up to the point of charge. For that reason, we hope that the Government take on board the spirit of our new clause on Report.

We have deliberately referred to publication, and the position of the press and the media. We understand that one problem with the previous

legislation on anonymity was that the police felt constrained and not always able to pursue all their investigations. That is another point that could be used for the argument on the other side. The more positive argument on that side is the need for names to be publicised so that other victims come forward. That is far more pertinent after the point of charge, and it is fairer than allowing someone to be judged by the media before they have been charged with an offence.

That approach allows the police to pursue their inquiries. It could be amended further to allow a special court application for the lifting of reporting restrictions if, as in an example that was mentioned yesterday, it is feared that someone dangerous has absconded. Equally, the clause could be extended to include special circumstances and a special application for anonymity beyond the point of charge as determined by a judge. We have made the new clause as simple as we can in the hope that the Government will respond to our points.

There is considerable sympathy across the board. The Minister has said that he has been in discussions to obtain voluntary agreements, so there is a strong desire to achieve anonymity before charge in many cases.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove

Maybe I am missing something, but it seems that to do as the hon. Lady suggests and give anonymity before charge ends up with the worst of all worlds. Reporting restrictions before someone has been charged are such that the press can barely say anything other than that someone is being investigated for an offence or has been arrested in connection with an offence. A very limited amount can be said about that person's potential criminal offence. The big problem is the embarrassment factor that causes upset to people when the court case goes into great detail. At the same time, because there is anonymity, other people who may have been raped by that person will not know to come forward because they will not know that the person is being charged with that offence. Therefore, anonymity would inhibit the police's ability to gain evidence to secure an ultimate conviction. I should be grateful for an explanation of why I am wrong in those respects.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I thank the hon. Lady for her intervention, but I am not quite sure where it leads. If the Conservative Front Bench were to push for a vote in relation to amendment No. 24, which calls for anonymity up to the point of charge—merely in relation to ''rape etc.''—at this stage we would support that, simply because we want to put a marker down to show that we support the approach, if not the exact wording.

There are many valid arguments and we are striking a balance between the pros and cons along the line. One of the cons of allowing full reporting pre-charge is that an innocent person can have their life destroyed, and that is not usually the presumption of British justice. The Metropolitan police service presentation showed that the police are particularly concerned with situations involving sexual offences against children because of the potential public reaction, even when a charge has not been laid.

The downside of any anonymity is the argument, which I know that other Members will put, that it inhibits other people from coming forward. That is why, at this stage, we do not support amendment No. 23 from the Conservative Front Bench. We are looking for a balance. I hope that that answers the hon. Lady's questions.

I want to emphasise that the Liberal Democrats think that it is wrong to delete the clause and have nothing in its place. We must take into account the power of the media, the state of today's society, the fear and the way in which innocent people can be persecuted and may even have to assume new identities, with no chance of being acquitted and showing that they are totally innocent either. Sexual offences in particular affect future life chances in relation to jobs. I accept that there is still an argument about whether there should be anonymity up to the point of charge for all offences. Again, we are talking about balance all the time, and that is why we would prefer to stick at the point of charge and make that starting point.

Photo of Chris Bryant Chris Bryant Labour, Rhondda 4:30 pm, 9th September 2003

Earlier this year, the Select Committee on Culture, Media and Sport produced a report on privacy and media intrusion. Time and again, it found that the police play a wholly counter-productive role in the process—as the hon. Lady will acknowledge. It is somewhat uncertain exactly what law they are breaking, although they might be breaking their own terms and conditions of employment. The police will frequently announce to the media that they are going to visit, for instance, Matthew Kelly and the media will be there in an enormous scrum. However, I do not see that the answer lies in the prescription that the hon. Lady suggests. Can she suggest other ways in which we might move forward?

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I accept that we need to debate the issue fully. I have had more reassurances in terms of the talks that have been progressing with the police and the Association of Chief Police Officers on discipline. The police sometimes need to use the media to help, in which case we could just make the appropriate amendment, and they need not be inhibited by fear of coming up against legislation. However, the point must be made really clear in their terms and conditions and in relation to their professional conduct. I feel that the Government are working towards that and I hope the Minister will tell us more. I certainly read in the press that the police themselves could be bringing in stronger disciplinary measures. In the Matthew Kelly case, I believe that the tip-off came from a potential victim's family and not the police. That goes to show that we should not place all the emphasis on tackling the police. Our media restriction would tackle the matter. Sometimes, in very sad circumstances, even the family—amazingly—will sell a story. At one point, I had the sad situation of having the youngest father in England living in my constituency. I heard that it was the family who sold the story to the press, which is staggering. We must look beyond the police. Voluntary discussions with the media and the police will never be enough because of that other link. As far as the media are concerned, it is

so much better if a voluntary agreement can be achieved, but if there is a good story that will mean high sales and a real coup, will a voluntary agreement ever hold for 100 per cent. of cases? High-profile cases may make us think that we have to do something, but meanwhile someone else's life may have been destroyed. I have read somewhere about the ''stand back and give it a try'' argument for voluntary agreements, and that is quite seductive. However, the problem is that someone might be severely damaged before that.

Another possibility is to include in the Bill a fallback position similar to that which we are proposing, should voluntary agreements not have enough teeth. However, that is not my preference. If amendment No. 24 were pressed to a vote, we would support it because the amendment supports the principles for which we are arguing.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

This is, I suspect, the most important debate that we shall have today and it is on a vexed subject indeed. We all have to acknowledge the basic principle that our criminal justice system operates, and has always operated, on a principle of openness. That is as it should be.

I want to try to address a really nasty mischief that troubles us all. What is it that makes us angry, and what problem are we trying to address? It is this: the case of a person who has not been charged with a criminal offence but who has been taken in for questioning by the police, a fact which, as well as many other surrounding allegations, is publicly printed in the media before the person is charged; and who is never charged because there is no evidence to substantiate a charge. That person's name is mud from then on—mud sticks.

When I read in the paper that X has been charged with an offence, I do not feel the same anger at reading it. When I read that someone has been convicted of an offence, I do not feel the same anger. I feel desperately angry when I read that someone has been taken in for questioning, and then read over a period of two or three months various salacious articles about what might or might not have happened, even though the person is never eventually charged. They are as innocent as anyone on this Committee, but their reputation is blacker. I do not like that situation one bit. That is the real mischief that angers me.

We all know examples. A few years ago, a Member of the European Parliament known to me was at Heathrow airport when he was found to have in his possession a very small amount of a low-level drug and a magazine—not a happy magazine. I think that that was the case. I will tread carefully when I tell the story but I think that I am right and that that is what happened. The next day it was all over the press. How did it get there? Did Customs ring the press and say, ''Guess what? We've got a celebrity and something to be said against them. Would you like the story''? Was it the police? Let us work on the basis that it was not the man himself who rang the press. It follows, as night follows day, that it was one of those other bodies. It is a really scandalous thing to happen.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

It is indeed scandalous, and what is also scandalous is that many of the national tabloid newspapers have a standing arrangement whereby they will provide money in exchange for information of such a kind, as has been admitted before the Select Committee on Culture, Media and Sport. Knowing how to deal with that is, however, much more difficult.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I suspected that money might have changed hands. The hon. Gentleman has heard evidence to that effect, and can confirm my suspicion. I regard that sort of activity by anyone in authority, whether a member of Customs or the police, as so disgraceful that if I, personally, had such a person before me on a criminal charge of having acted in such a way, I would have little hesitation in giving out a condign custodial sentence straight away. It is an absolutely wicked thing to do.

Incidentally, I think that the Member of the European Parliament in question—I am sure I will be corrected if I am wrong—was never charged with anything: a career ruined for a wonderful story over a couple of days. We know about other cases, some including former hon. Members, as well as many others who I do not think have been charged with anything, but the tabloids have run the stories. It is a mischief that must be addressed harshly. If anyone thinks that voluntary codes of practice work, I have never known one to. If anyone thinks that anything other than the heavy hand—by which I mean the heavy hand in a big way—will work, I think that they are in cloud cuckoo land.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I have been listening to the hon. Gentleman with some interest, and I have great sympathy with his arguments. Will he also accept that it is not just the celebrity that suffers? A case has recently received a lot of attention in my local media. A schoolteacher was accused by a young boy of certain acts, and that was heavily reported. The schoolteacher, a headmaster, has now disappeared, and no one knows where he is. That sort of thing puts an intolerable burden and strain on families. The teacher—if he has not committed suicide, which is the fear—will never be able to teach again. It is not just the high-profile cases that we must be concerned about, but all cases, particularly when people work with children, as children these days are very aware of how they can cause maximum damage to other people's lives.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Lady refers to an interesting case, and is quite right. It is not just celebrities who are affected. I was going to refer—I wonder whether it is the same case—to something I read the other day. A head teacher had, I think, killed himself facing that sort of charge. I pause to add that a schoolteacher whom I knew at my old school, and my son's school, was lifted by the police six or seven years ago on suspicion caused by some videos. He was a wonderful man in many ways. He never lived to be charged. That is the area in which I think there is the real mischief.

Where do we have problems? We have big problems, because if I propose anonymity for a defendant, under what offences do I think that a defendant needs to be anonymous until charged? Such scenarios are difficult. Many allegations, if made against you, Mr. Gale, me or any of us in

Committee, could be frightfully damaging to us. Let us assume that I am a defendant in a rape case. It would be nice if I were anonymous until I was charged or convicted. How would I feel if I were taken in for questioning on charges of indecent assault on a child or an adult? How would I feel if I were taken in for questioning about paedophile offences? How would I feel if I were taken in for questioning about computer pornography? ''Am I limiting myself'', I ask rhetorically, ''to allegations of a sexual nature?'' I ask the Committee whether that is the real mischief. Do I deserve some anonymity in relation to any or all of those offences, or none?

Would I be similarly ashamed about the stigma and the mud sticks argument? Would I be badly placed if I were taken in for murder or for the armed robbery of an old lady? I do not know the answers to such questions, but they are fair questions to ask. I am asking them of myself because I do not have to answer them.

Photo of Chris Bryant Chris Bryant Labour, Rhondda 4:45 pm, 9th September 2003

In which case, I may as well ask the hon. Gentleman an explicit question. Clearly, the amendments suggest that such matters should apply only to one specific set of criteria, not the whole of criminal law.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I shall put my answer in brackets, given that people in certain positions in society may be hit more heavily by an allegation—whether or not charged—than others in society. My best answer to the hon. Gentleman is that, for the purpose of my argument, I must limit the issue to rape, although I recognise that the problem area is wide.

I refer to the critical mischief, which is caused by the revelation before being charged that I have been taken in for questioning, and the evil of the publicity of such action. The whole issue of anonymity has changed over the years. In 1976, there was anonymity for the defendant in rape cases. Section 6 of the Sexual Offences (Amendment) Act 1976 states:

''After a person is accused of a rape offence no matter likely to lead members of the public to identify him as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public or be broadcast in England and Wales except . . . as authorised by a direction'',

or after the person has been convicted. That was the law in 1976. I suppose that the idea was to provide a level playing field between complainants and defendants, and to ensure that the accused did not have to suffer the social stigma that can arise from an allegation of rape. After the ghastly Morgan case, Mrs. Justice Heilbron recommended that complainants should also be anonymous. Part of her reason for that action was to encourage more complainants to come forward in rape cases. Whether that has happened, I do not know. I doubt it.

The other reason to recommend anonymity for complainants was the stigma that was caused. In effect, a level playing field was created for the defendant and the complainant. It was abolished in 1988, because Parliament decided that the defendant in rape cases should not be treated differently from any other defendant in a criminal case. Parliamentary

moods change every 10 or 15 years depending on what is going on in the society in which we live. When the anonymity rule was abolished for defendants, it was felt that a not guilty verdict should be fine to acquit a person of the stigma.

In conclusion I ask, are the current rules satisfactory? No, they are not; they are wholly unsatisfactory.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Does the hon. Gentleman agree that, far from convincing the Committee, he seems hardly to be convincing himself of the strength of his argument? The problems that he outlined do not seem to lie with anonymity or the fundamental principle of justice being open, but with the way that the press and some of our public servants operate on confidentiality. If there is a serious problem, we should address those issues rather than that of anonymity for defendants in rape or other cases.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman kindly points out that I appear not to be persuading myself, never mind the rest of the Committee. If he knew me better, he would know that I sometimes have a slightly self-deprecating style. I work on the basis that I do not have to shout terribly loudly for my views to be considered sincere.

I have to come to a conclusion, and like the Select Committee on Home Affairs, I must somehow reach a balance. I feel very strongly indeed—I must try to impress upon the hon. Gentleman how strongly I feel—that the mischief that I spoke about earlier concerning what happens pre-charge must be addressed meaningfully. I also believe in the principle of openness, but I believe in equality under the law for both the complainant and defendant in a rape case. I appreciate that there are many different sorts of rape cases in which such issues are relevant, and that is why I argued against myself earlier. However, the same anonymity as currently applies to the complainant in a rape case, which lasts until the end of the trial with the leave of the judge, should apply to the defendant, undoubtedly until charged and probably until convicted. After that, matters would be different.

That is where I have arrived, by a circuitous route and having taken into account all the points that have been and will be made against me. I will listen carefully to how the Government approach the subject. I know that they will approach it genuinely, but, like my hon. Friend the Member for Beaconsfield, I will reserve judgment. I hope that the Government are able to satisfy us before we decide whether to press the amendments to a Division.

Photo of Vera Baird Vera Baird Labour, Redcar

I thought, right up to the last minute, that there was no need for anybody to deal with the tit-for-tat argument, which was rejected by Heilbron in 1976. As the hon. Member for Woking said, anonymity for defendants came into force at that time but it was in the teeth of what Heilbron said. She was completely against it on the basis that the tit-for-tat argument was poor and did not merit further consideration. In 1984, the Criminal Law Revision Committee agreed with Heilbron and said that that provision should never have been in place. It agreed

that the tit-for-tat argument, despite its superficial attractiveness—I am not being personal—was not valid, and it is not.

The hon. Gentleman is a lawyer, and he knows that the difference is that, if one does not give anonymity to complainants and witnesses, they do not come forward and they receive no justice. The more vulnerable they are, the less likely they are to come forward and the more they need the protection of the system. That is not the situation for defendants.

It is by no means limited to cases of rape or sexual offences that complainants or witnesses are given anonymity. Although there is a blanket provision in rape cases, anonymity is frequently given under the special protection measures in the Youth Justice and Criminal Evidence Act 1999 to all kinds of complainants and witnesses to try to ensure that they come to court.

In many other kinds of case, even before that Act, there was a real possibility that people would be allowed to give evidence from behind screens and that their names would be left off witness statements. Such people are given anonymity for the same reason: because they have to be persuaded to come to court. It is even more the case that rape complainants have to be persuaded to do so, as has been canvassed effectively. There is simply no equivalence to be drawn between the defendant's position and the complainant's.

I refer to Heilbron because, of all the hon. Members who have spoken, only the hon. Member for Beaconsfield and the hon. Member for Woking have pointed to rape as a special case for anonymity. The Liberal Democrats' arguments applied to every offence. All they seemed to be saying was, ''We've got to start somewhere, and it might as well be here, because that is what the legislation is about.'' That is not a good argument.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I should perhaps mention that we were supporting the Home Affairs Committee investigation into the issue; the Select Committee came up with that recommendation. We were not just plucking it out of the air. It came to the conclusion that, on balance, there is an argument to be made. Of course, the Select Committee also considered the special case of abuse in children's homes. It considered that question for defendants, and in relation to pre-charge, too. There has been considerable concern about the subject of sexual offences. I could well be persuaded with a promise of anonymity until a charge is made for all offences. That is something comprehensive that I would accept.

Photo of Vera Baird Vera Baird Labour, Redcar

I am grateful to the hon. Lady for clarifying the basis of the Liberal Democrats' thought. The Home Affairs Committee thought on balance that there should be anonymity until charge, but it was only considering the Bill. The question is whether we should accept that or think more widely, and it is obvious that we have a general duty to the public to think more widely.

The hon. Member for Beaconsfield suggested that between 1976 and 1988—the relevant report was made in 1984, but the law was repealed in 1988—there were no problems with anonymity. That is not right. It was seen very widely as a slight to complainants in rape cases. It will inevitably look that way, because it is the only kind of offence in which one says publicly, ''This complainant is so little to be relied on that we expect the defendant to be acquitted, so we are giving him extra protection against false publicity, as he is almost bound to go free.'' That is a slight and suggests that complainants in that kind of case are, more frequently than in any other, making a false case.

Photo of Vera Baird Vera Baird Labour, Redcar

I will, but may I finish my train of thought first?

It is a long time since that was an acceptable approach to complainants. I do not want to paraphrase the exchange in The Guardian any further than this, but the hon. Gentleman will recall that the 1970s were a time when rape complainants—and they were exclusively women—were considered so unreliable that their testimony had to be corroborated, or it could not be relied on by a jury. Very few women brought complaints of allegations against partners or former partners because it was almost impossible to get a conviction of that kind. The hon. Gentleman will also well remember that, in the 1970s, it was not even an offence for a man to rape his wife. Allegations brought against people by their partners or ex-partners were rare indeed, because the principle in those days was that a woman had nothing to complain about if a partner forced sex on her.

Happily, the atmosphere has changed, and the slights, the need for corroboration, the availability of a woman to a man once she married him, the inability to complain and the anonymity have rightly all gone. They should have gone many, many years ago.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I, too, do not wish to revisit the entire correspondence, but in the 1970s there were far fewer allegations of rape—admittedly for the reason, which I fully accept, that doubtless many cases were not brought at all. However, the fact remains that, notwithstanding the anonymity, the conviction rate was considerably higher than it is today. I understand the hon. and learned Lady's point about a possible slight to the complainant, but we are here concerned with outcomes, and anonymity in the 1970s cannot be shown significantly to have diminished outcomes. Since anonymity was abolished, outcomes have declined progressively.

Photo of Vera Baird Vera Baird Labour, Redcar

What anonymity almost certainly did was to play a part in the other slight to the complainant in the 1970s: ensuring that very few complaints were made. The hon. Gentleman knows well that the number of complaints has risen quite enormously since that time.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

May I intervene on my hon. and learned Friend to put a point that bears on the hon. Gentleman's intervention? He said that outcomes have worsened. Does my hon. and learned Friend understand it to be the case that the reporting of rape

has gone ahead of the increase in convictions, so that the number of convictions as a percentage of reported rapes has gone down, but the actual number of rapes brought to court and the actual number of convictions has gone up? Perhaps we should be encouraged by the increase in the numbers prosecuted and numbers convicted, but recognise that the number of allegations is moving ahead of that. The outcomes have not got worse, but we should like them to get even better. Is that not the case?

Photo of Vera Baird Vera Baird Labour, Redcar 5:00 pm, 9th September 2003

It is the case, but the other point, which is wrapped up in what my right hon. and learned Friend has just said and implicit in my remarks, is that women did not complain about partner and acquaintance rape in the 1970s, primarily because rape by a partner was not seen as rape because of the rule about married people. What they complained about was stranger rape, so of course the conviction rate was higher: cases of stranger rape are relatively easy to get convictions in. The proportion of stranger rapes resulting in convictions has remained pretty constant. What has led to the decline in the conviction rate is the increase, which it is vital to encourage, in complaints of allegations against partners or former partners. With respect to the hon. Member for Beaconsfield, he has proceeded on a completely false basis.

I have dealt with the hon. Gentleman's first argument that we have taken this measure before with no harm. His second argument is that the low conviction rate means that rape is a special case and people have to be given protection if they have a greater potential to be acquitted. I regard it as an irony, and a cruel one, to use the low conviction rate as an argument for anonymity specifically in rape cases. Happily, the inspectorate of constabulary and the inspectorate of the Crown Prosecution Service last year confirmed many of the things that feminists and women's campaigners have been saying for many years—notably, that the principal reason why cases do not get to court and reach conviction is that the criminal justice system does not give complainants enough support.

That is a broad way of putting it. At the beginning, women have to go to police stations and complain and, if there is no sexual assault referral centre, take their chance with who is on duty, with how long they wait in the waiting room, with what the forensic medical examiner is like and with how long he takes to arrive. By then, they may have thought, ''This is appalling. If they are not going to give me any more support than this, I'm going to go no further''. The issue then moves on to how the police have historically investigated, thinking that, as there is a 7 per cent. conviction rate for rape, they will not bother with this one or try very hard because it will just go into the dump of acquittals. The Crown Prosecution Service is similarly guilty—of not getting the police to reinvestigate and not considering all the evidential position. All that has now been discovered, and all the agencies are trying to remedy it.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I agree with every word that the hon. and learned Lady says. She knows that I welcome any

steps that are taken to facilitate complainants bringing their complaints and getting them taken seriously. That brings cases to trial and ensures that juries can make decisions. One must also accept that sometimes there will be evidential difficulties that will lead to acquittal, although that is not the fault of the complainant. However, I do not understand how the arguments that the hon. and learned Lady advanced, which I endorse and support, affect the anonymity of the defendant—that issue could go hand in hand with all of those.

Photo of Vera Baird Vera Baird Labour, Redcar

With great respect to the hon. Gentleman, they do affect the anonymity issue. Since the report drew the attention of all the agencies to the lax way in which they were pursuing trials, everybody, including the police, the Crown Prosecution Service, the courts and lawyers, has made the maximum effort to give support to complainants to encourage them to come forward. It is important that they do that and that the conviction rate increases. The hon. Gentleman proposes to do the opposite. He seeks once again to stigmatise complainants as a category of person who is not likely to be believed, or whose complaint is not likely to result in a conviction.

It is odd to stigmatise the people who need support with their allegation by saying that Parliament thinks they are not likely to get a conviction from their complaint and, as a consequence, that the man against whom they have made an allegation is different from any other kind of criminal justice defendant and needs special protection against unjust adverse publicity. That is an odd way of trying to increase the conviction rate, which everyone thinks is a good thing. That is a good reason and a major argument for why anonymity for the defendant must not apply only for rape and other sexual offences. To do that would run against everything that all the criminal justice agencies are trying to do to support and to encourage people to be confident that they can come forward and be looked after.

A further point, which was made by the Liberal Democrats, is that other witnesses come forward when publicity is attached to a charge. That happens very often, although not exclusively, in rape cases, because women on their own often do not have the confidence to speak out, particularly if the individual concerned is in a position of authority over them, or is more senior. When women appreciate that somebody else has spoken out, they get the confidence and they are galvanised to do the same.

It is impossible to legislate for the anonymity to be lifted so that other witnesses could be sought. I know that the hon. Member for Beaconsfield has considered that, too. One cannot know of the defendant has previously assaulted other women. Many rapists are serial offenders who form relationships with women—indeed, many offenders form relationships with vulnerable women. The fact that the guy was in a relationship with a complainant is no guarantee that he is not a serial rapist and nor that the woman who first complained does not need the help of other complainants to support her. It is difficult to legislate for anonymity to be lifted in such a way, because it is not known in which case it might be needed.

I am sympathetic towards a person who is charged and acquitted, but I do not think that saying his life is ruined is anything other than hyperbole. The most recent examples have demonstrated clearly that, although it is appalling for the person at the time, as soon as he is acquitted all the public sympathy turns against the person who accused him and is directed towards him, saying what a dreadful time he had. That is straightforward and plain. Frankly, people are fairer than Committee members are giving them credit for.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I agree with my hon. and learned Friend in relation to cases in which people know that an acquittal has happened. However, the tabloid press have often let us down by reporting allegations at great length but not reporting an acquittal in anything more than a single sentence. A degree of prudence and responsibility is required from the newspapers, but it is difficult to see how that could be enforced.

Photo of Vera Baird Vera Baird Labour, Redcar

I take the point, but in the case that we have been talking about the acquittal has almost had more publicity than the initial allegations. The iniquity of the acquittal is what has given rise to this Committee debate and to the public debate. The debate is not against the defendant, but against rape complainants as a general category, who because of that case all of a sudden are again seen as a mischievous bunch of women. That is what the debate is a cipher for.

However, if I am wrong and Opposition Committee members are right and it is still agony for a defendant beyond an acquittal, then that agony is not confined to rape cases. Imagine if the two people accused of the Soham killings had had all the publicity but were never charged. They would be in a dreadful position; their lives would have been ruined, but they would have had nothing to do with rape. As the hon. Member for Woking said, there are many horrible offences; one just has to let the imagination run riot.

Having sex with an animal would be a horrible allegation; a person alleged to have done that would want to be anonymous. A person alleged to have beaten up an old lady and taken all her money would also want anonymity. The simple position ought to be that nobody should be named before they are charged. That is absolutely clear, because there is no certainty even about an allegation before a charge is made.

Such a position on anonymity must come soon but it would not be appropriate to confine it to rape. If it were confined to rape, one would have the two problems that I have set out clearly: other complainants would not come forward and those who have would be have the finger pointed at them as unreliable people, based on whose allegations Parliament thought convictions were unlikely. They would be undermined, and the provision would have the opposite effect to that which we are trying to bring about.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. and learned Lady makes a powerful argument but she must accept that there is room for two points of view, not least because the Labour-dominated Home Affairs Committee

appeared to take a view different from hers; it looked at the matter very carefully.

Photo of Vera Baird Vera Baird Labour, Redcar

I do not accept that there are two equally valid conflicting arguments. Public policy requires that we encourage rape complainants to complain; the hon. Gentleman's view would get in the way of that for no reason. What one could do perfectly simply, if it were desired, would be to stop publicity in relation to all crimes; rape would be covered. The Home Affairs Committee was looking only at the Bill and it came to its conclusion on balance. We should look at the wider [octire. Of course, no argument of that kind was levelled to the Select Committee: it read the arguments put before it, and none were put to it as well and openly as they have been canvassed by all sides today.

The position that I suggest is a clear one: having anonymity would be damaging to all the effort that the Government and the public agencies are putting into increasing the number of rape complainants who come forward and of convictions. In addition, anonymity would stop other cases from being brought. I invite the Government not to accept any of the amendments or new clause 1 and to dispense with clause 2, which is absurd as currently drafted. It would give a thrice or four-times-convicted rapist anonymity until the day of his death.

Photo of Chris Bryant Chris Bryant Labour, Rhondda 5:15 pm, 9th September 2003

I do not disagree with any of the arguments advanced by my hon. and learned Friend; I merely want to add a couple of others. In response to the hon. Member for Woking, I would ask if there is not room for two points of view. There is room for a profound understanding of the problem as it affects those working in child care, youth work, schools and those who may have had their lives made difficult by vexatious claims. I do not think that there are two possible legitimate answers.

In one set of proposals to deal with the problems outlined by the Opposition there is a suggestion that there should be anonymity up to the point of charge. There is no legal reason why there should be anything other than anonymity up to the point of charge. There is no reason why the allegations that have been made should be in the public domain at all, unless either of the two parties has told people.

We focused quite a bit on what newspapers, television and radio may do by way of publicising a case, or the allegations made against someone—as in the Matthew Kelly case—but in the community that I represent it is far more damaging for everyone in the street and the village to know that an accusation has been made than it would if an accusation were made in the Rhondda Leader. In fact, it would never appear in the Rhondda Leader as that newspaper has an exemplary record of making sure that vexatious claims do not suddenly appear all over the front page. The local police force has also been exemplary in maintaining the anonymity of all those accused of any crime up to the point that there is a case that needs to be answered and a defendant has been charged.

Non-publication, as suggested by the Liberal Democrats, does not guarantee anonymity. In many

communities in this country, the situation is not the same as it is in large metropolitan communities. In smaller rural communities where everyone knows everyone else's business, non-publication would make no difference to the anonymity of an individual or to whether that person felt that they had to move to another village. The two remedies that have been suggested simply would not solve the problem that hon. Members have raised.

The suggestion that there should be anonymity after charge seems extraordinary to me, not least because of the cogent argument put forward to those of us who were able to attend yesterday afternoon's meeting with the Metropolitan police. It would make it phenomenally more difficult for other people who had been raped to present themselves if they did not know that a charge had been made, or the name of the person charged.

In the main we have referred to cases of rape against women, but there are cases of rape against men and other abuse cases in which the same problem could be noted, and the same arguments could be advanced. If one's head teacher when one was a 13-year-old was charged with abusing five other boys in a school or care home and it was publicly known that he had been charged, that would make it more likely that one would understand one's past and feel able to come forward to make an allegation to the police.

I do not think that any of the remedies that have been proposed are right in principle, nor would they solve the problem that has been presented. As my hon. and learned Friend the Member for Redcar said earlier, all the arguments that have been advanced could be advanced in every other criminal case. I cannot see why if the problem applies to those accused of rape it does not apply to a defendant in a murder trial. If one is a City banker, one's reputation for honest dealing is probably going to be more harmed by an accusation of financial corruption. It is not legitimate to advance such arguments solely in the case of rape.

Rape may be thought to be a special case because such an act is thought of as sex, not violence. I refer to the sexual element—the taboo side of talking about rape—because it causes people to feel that the dishonour weighing on people simply because of their having to face such a charge in court is greater than the dishonour that is faced by those against whom other charges are made. That notion should not be upheld by the law. The wider population consider rape to be the act of a deranged stranger rather the act of someone who is known to the person who has been raped. People believe that a wholly different set of principles should apply to the defendant in rape cases from those that apply in other cases, but that is wrong.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Gentleman is profoundly mistaken. The public at large clearly understand the distinction between rape by a stranger and the vast majority of rape cases. Indeed, if an allegation were made that a person had raped a stranger, but he was acquitted, I expect that he would be less tainted than he would be by the fact that such matters had caused intrusion into his private life, which the investigation

of rape between two people with a history of sexual relations would cause. The public well understand such a distinction.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

The public may understand that distinction, but the general assumption among the wider populace is that, when people talk about rape, they are taking about an act between two strangers. Furthermore, most people conceive of rape primarily in its sexual context rather than in relation to the violence that has been perpetrated against the individual. That is why I do not wish to draw a distinction between the treatment of defendants in rape cases and those accused of any other violent crime. Rape cases should not be treated differently from other cases.

Yes, there are problems. We know that they exist in youth work in the United Kingdom. Some 20 or 30 years ago, some of the best youth work was done one-to-one. A single youth worker would work in a room with an individual child who was troubled. Such work is not carried out so much now because many youth workers are worried about the potential for allegations of abuse to be made against them.

I suspect that there is another problem in that the tabloid press still pays public servants, police officers, Customs officials and others for information far in advance of charges being made. By the time a charge is made, such matters are no longer newsworthy and of financial value. The solution to such problems does not lie in providing anonymity for defendants.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove

I shall be brief because obviously we want to hear the Minister's response to the issues that have been raised. By giving people who have been raped anonymity, we have recognised that there is a potential difference between rape and other criminal cases. In other circumstances, when people are accused of a criminal offence, independent corroboration is taken into account, such as missing money from a bank account or circumstances in which a person has been badly beaten or murdered. In the case of murders, DNA evidence gives rise to the strong probability of linking the people who are accused of the crime with their having committed it. Equally, there may be DNA evidence in cases of rape, but the issue centres on who is telling the truth about whether consent was given.

Such matters are difficult to balance as we heard yesterday, when the police gave their excellent presentation. Those of us who are members of the Culture, Media and Sport Select Committee, such as the hon. Member for Rhondda (Mr. Bryant), know that newspapers are keen to publish all the grim details of every rape case that they can possibly claim is pertinent to their area. The national newspapers are particularly guilty of that. In difficult rape cases, a person can be severely damaged by the prolific detail of intimate events that took place between them and another person where there is a dispute about the facts of that particular case. The person making the claim is given anonymity but the person defending themselves against the claim is not. Although there is the possibility that that person is guilty, given all the difficult balances that one has to make, it is reasonable that they should benefit from anonymity. Subsequent

to their being found guilty, the whole case can be put on public parade for their humiliation and just desserts.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The debate reflects the fact that there are no easy answers to the problems that we are discussing. All hon. Members are trying to find what they consider to be the best conclusion between some very acutely competing imperatives, which are inherent in those cases and, as I shall argue later, other kinds of cases. It is our conclusion that there should be no change in the law relating to anonymity. Amendment No. 42 would remove the clause 2, and we are resisting the amendments tabled by Opposition Members.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. Amendment No. 42 has not been selected so the Minister cannot remove the clause. She will have the opportunity to achieve precisely the same effect when we vote on clause stand part.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I beg your pardon, Mr. Gale. It was included on the informal list of amendments. I note that it was not on the formal selection list produced for the Committee, so I will restrict myself to some of the arguments that have been put forward.

To respond to the points made by Opposition Members when they spoke to their amendments, the crucial question that must be answered is what is so exceptional about rape cases that it justifies anonymity for defendants? Apart from the hon. Member for Woking, all members of the Committee have recognised the importance of the principle of openness in the criminal justice system and that criminal justice should be executed publicly and should be seen to be executed publicly. It is right that that should continue to be our starting point. If that is the case, the crucial question is what is so exceptional about rape and other sexual offences that it justifies setting aside that principle?

Photo of John Randall John Randall Conservative, Uxbridge

I require some assistance. Is rape the only offence in which anonymity is always given to the victim, or are there other crimes where that is also the case?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

As I understand it, the victim has anonymity in cases of rape, although in certain circumstances the judge can lift the restrictions on revealing somebody's identity.

Photo of Vera Baird Vera Baird Labour, Redcar

Other sexual offences are covered as well, but in addition there is a power, to which I alluded, that is often exercised by judges to give anonymity to complainants and witnesses in all kinds of cases.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I was referring to adults because child victims would, of course, be covered.

The critical question—what is exceptional about rape cases—needs to be answered, and it has not been satisfactorily answered today. Several issues have been raised during attempts to answer that question. Is the stigma associated with rape greater than that associated with other sexual offences or non-sexual offences, such as murder? I agree that there is an

impact on the individual of being charged with a very serious offence, or an offence that might not be regarded as so serious as rape or murder if it has connotations that reflect on the defendant's situation. If a bank manager is charged with embezzlement or if a politician is charged with taking money for questions, such charges fundamentally challenge the defendant's integrity as a person and examine their behaviour way beyond the norm to such an extent that it is perfectly possible to argue that the stigma associated with such offences and the consequences for people in terms of their livelihood are just as potentially serious as the consequences for people charged with rape.

The second argument put before us, by the hon. Member for Beaconsfield, is that the low attrition rate in rape cases makes it unique. I do not think that it is. If we look at other kinds of offence, particularly, arguably, sexual offences against children, we see that the attrition rate is as great if not greater, from the point of investigation through to conviction, as in rape cases. There is not an argument that rape is unique in the sense that a high attrition rate justifies the need for greater protection for defendants up to the point of either charge or conviction, depending on which amendment we refer to.

The hon. Member for Bromsgrove (Miss Kirkbride) argued that in rape cases there is often no corroborating evidence and that that makes a big difference. Again, there are other cases such as the sexual or physical abuse of children in which there is no evidence to corroborate the evidence of the victim him or herself. Therefore, if we want to go down the route of anonymity for rape cases, we must entertain the argument that the kinds of criteria being put forward by those behind that, apply equally to a much wider range of offences than rape or even a limited range of sexual offences.

A further issue is that to justify exceptional treatment, and anonymity, of defendants in rape cases might lead people to conclude that that is because there are many false allegations in rape cases, which also accounts for the high attrition rate and low conviction rate. I do not think there are Committee members who believe that. Clearly there is always the potential for false allegation and we know that it occurs. However, the general consensus here and outside the Committee is that the main reason for the low conviction rate in rape cases is not false allegation but the problem of securing a conviction in very difficult circumstances.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 5:30 pm, 9th September 2003

I am grateful to the hon. Lady for giving way. I am bound to ask her, is not the difficulty that there are undoubtedly cases of false allegation? Examples have been well documented. Is not one of the key problems in doing justice in such cases that awareness of the existence of such false allegations—often in cases where essentially complainant must be weighed against defendant in the absence of the extraneous evidence so often needed to help reach a decision—almost certainly colours the views of juries in approaching all such cases? They have to be approached with great caution. Perfectly properly,

juries follow the direction of the judge that they must not convict unless they are sure. Doing their job absolutely properly, they return acquittal verdicts. The problem is very difficult to get round.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

It certainly is, and it has been the substance of much of our debate and discussion in Committee today. We have acknowledged those difficulties and have tried to assist with them in formulating various parts of the Bill. I respectfully suggest to the hon. Gentleman that that does not constitute an argument in support of anonymity for defendants in rape cases at whatever point in the process. The arguments advanced have not made the case on what differentiates those cases to justify anonymity. In deciding anonymity, we must weigh up not only the interests of the individual, but the wider public interest in having a criminal justice system that is executed publicly and is seen to be executed publicly.

Photo of John Randall John Randall Conservative, Uxbridge

I am being gently persuaded by the Minister's arguments, but I have one question. Bearing in mind what has been said, does she think that anonymity up to the point of charging for all offences—in such august company, I speak carefully on legal matters—would be a better way round the problem? There is obviously a big problem, but this might not be the place to deal with it.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

My hon. and learned Friend the Member for Redcar put that proposition. The hon. Gentleman will appreciate that if we were debating it, we would be debating one of the fundamental principles underlying our criminal justice system. We have not heard arguments today from those proposing anonymity in a limited number of cases—rape plus a few other sex offences—that they really want to change the basis of our criminal justice system. We must stick with the proposal that there is a justifiable case for anonymity for defendants only in cases of rape and of a few other sexual offences.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I was slightly perplexed by the Minister's comments, unless I have misunderstood them. I thought that the comments coming from the Home Office over the past few days, which have received widespread publicity, were all about taking the opportunity of this legislation passing through Parliament to come out with some suggestions about how the anonymity of the wide category of those being investigated might be preserved. Have I wholly misunderstood the issue? The spin machine must be totally out of control if the media are picking up that message while the Minister is telling us that no such message exists.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I will clarify that point in a moment.

The crux of our argument is that the case for differential treatment of defendants in cases of rape and a few other sexual offences has not been made. As the hon. Gentleman said, there could be a less fundamental remedy. The amendments would also hamper efforts to encourage more victims—mainly women—to report sex offences committed against them. Furthermore, restricting the details proposed by the clause would also minimise the chance of other

victims of a defendant coming forward in the case of serial offending or to enable the police to identify crucial witnesses.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I will finish this point.

It is important to note that when the restrictions were in place between the 1976 Act and their repeal in 1988, they caused practical difficulties, which were well documented. For instance, if a man escaped custody before conviction, the police could not warn the public that he was a suspected rapist unless the judge exercised his power to lift the restrictions.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I, like the hon. Member for Beaconsfield, am slightly confused by the mixed messages coming from the Government. In a meeting prior to the Bill's commencement with one of the Minister's colleagues, prior to the Bill's commencement, we were strongly led to believe that the principle was accepted and that the Government would be working on voluntary agreements to effectively achieve the same things. However, the Minister is now putting forward strong arguments for not doing that at all.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The hon. Lady did not really need to ask that question because the hon. Member for Beaconsfield has already asked it. I said that I would deal with it.

I have been talking about the amendments before us, which propose the legislative route to dealing with a problem. We acknowledge that there is a problem. There are difficulties about publicity that need to be addressed. It is accepted that some defendants have been unfairly treated. The solutions that have been proposed so far, which I have been arguing against, would make it a criminal offence to publicise someone's name either pre-charge or pre-conviction. We are not convinced that it is right to use legislation differentially or to use the protection of the criminal law for defendants only in specific cases. However, there is consensus that we need to do something. The first option should be the non-legislative route to improving the situation pre-charge when a defendant is publicised inappropriately or prematurely. We believe that we should pursue the voluntary route not just, as the hon. Member for Romsey implied, for rape or sexual offences, but for all offences as a matter of principle.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Further to that, will my hon. Friend the Minister say whether the option of contempt of court legislation will be considered? That puts restrictions on newspapers reporting when it might prejudice a trial, and comes into effect as soon as it is thought likely that charges will be made. Presumably, that could be used more vigorously to control reporting that would have the adverse impact of the kind that the Minister has described.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Certainly, if there were opportunities to enforce existing legislation more robustly and to good effect, as my hon. Friend suggests, we would look at that. The Under-Secretary of State, my hon. Friend the Member for

Wythenshawe and Sale, East (Paul Goggins), has been pursuing the potential for informed and strengthened guidance for the police and the media. We believe that that is preferable to any change in legislation.

The police code of conduct provides that information that comes into the possession of the police should be treated as confidential—there are no two ways about that. I am aware of the concerns that often that is not what happens and that information is given out in return for money. Information should not be used for personal benefit, nor should it be divulged to other parties except in the proper course of police duty. The code also demands that police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues, regardless of whether on or off duty. They should not behave in any way that is likely to discredit the police service. I agree that unauthorised disclosure of information on a suspect by a police officer is a disgrace; it is also likely to be, and should be, considered a breach of the code.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Let me finish this point. Such a breach means that an officer's conduct has not met the appropriate standards for the purposes of the police conduct regulations, and disciplinary proceedings can follow. An officer could face dismissal or even prosecution, depending on the circumstances of the case.

Photo of John Randall John Randall Conservative, Uxbridge 5:45 pm, 9th September 2003

Perhaps I should have been a bit more patient, because I think that I would have got my answer. I will add a supplementary question: is the Minister aware of any such proceedings being taken against any members of the police force in the past five years or so?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I am reliably informed that that has happened and I am certainly willing to provide information to members of the Committee. That is certainly relevant.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am delighted to hear what the Minister is saying, because members of the Culture, Media and Sport Committee have been banging on about the matter for the past few months, ever since the editor of The Sun confessed to us. The other side of the argument is, not only do police officers give evidence, but newspapers buy evidence from police officers. Will the Minister comment on that?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

May I clarify where we have got to with ACPO? Meetings have taken place and we have reached an agreement with ACPO that it will amend its media and disciplinary codes for all forces to give greater prominence to the rules that govern the release of information about anyone suspected of an offence, but not yet charged with it. We are working to ensure that the guidelines are consistently and robustly enforced. At the same time, Ministers have had discussions with media representatives to assess how unhelpful and intrusive reporting of such cases can be avoided, with a view to amending and strengthening

the relevant codes of practice governing press conduct. A further meeting has been arranged and will take place before Report so that we can provide further details to Committee members about the results of those discussions and about how confident we feel that we can progress a much more robust approach and the implementation of stronger guidelines on the way in which the press deal with such issues.

There is a precedent that might give Members some comfort about the effectiveness of such an approach. Members may be aware that, following the passage of the Youth Justice and Criminal Evidence Act 1999, agreements were successfully put in place with the press. They require anonymity for persons under 18—defendants, complainants and witnesses—who are involved in criminal proceedings. The relevant provisions in the Act have not needed to be implemented because those voluntary agreements have stuck, have been adhered to and have worked well. That may give Members some comfort that the route proposed in those cases can also be applied successfully in this case.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

Can the Minister confirm that there are provisions in the Bill that she just mentioned should the voluntary agreement break down?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The 1999 Act contains a possible power that has not needed to be switched on because the voluntary agreement has stuck.

I will reserve any other comments for a possible stand part debate and simply say that, for the reasons that I have outlined, we will resist the legislative routes proposed in the amendments. I hope that Members will agree to see how we get on with pursuing the voluntary route as an alternative.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. In the light of the Minister's comments, I should make it plain that, having listened to the debate for a considerable time, and having realised that the clause is very narrow, I do not propose to permit a stand part debate. If the Minister has more to say, she should take her chance and say it.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

This has been an interesting debate, and I thank those who have participated. I have certainly found it helpful in developing my ideas on the problem that we face. I fully accept that there are two issues under consideration. Although they are linked, they have a distinctive characteristic.

The fact that we have been looking at sex offences, and the fact that changes were made in the other place to the rules of evidence on rape cases, brought several issues back to the fore: anonymity for complainants, the previous anonymity for defendants, and the recent cases that highlighted the damage that can be done to defendants in cases in which there is a prurient public interest and a great deal of surrounding publicity.

To pick up on an earlier point, sex offences—and not only rape; child sex offence allegations come into the same category—put a uniquely damaging taint, of a type greater than that associated with any other offence, on the defendant. That is just the way that the world works, and is how the media and publicity

work, too. I therefore think that they come into a particular category.

That said, I conceded at the outset of my arguments that I do not think that the Bill as amended in the other place was intended to be a fully formed piece of legislation. Indeed, Lord Ackner, in proposing his interesting amendment—which, perhaps even to his own surprise, ended up amending the legislation—was highlighting a concern. I have always accepted that clause 2 as drafted raises a number of problems, even for those who want anonymity in rape cases for defendants.

The other area that we touched on is anonymity in all criminal cases, but of a rather different kind, covering the anonymity in the period of investigation. I accept that those are two rather different issues, and that in a sense that second issue has been hitched on to the consideration of the Bill because, frankly, it provides an opportunity for considering the matter. If we did not take such opportunities, we would not have had the chance to explore the issue publicly.

I take all sorts of points that have been made. There are some in relation to rape specifically that I disagree with, and I do not want to go over the arguments again. I suspect that there are potential difficulties in granting anonymity to defendants in rape cases, and if we are to do so, I certainly accept that there are equally valid arguments for extending it to sex offences generally, and particularly to child sex offences. Obviously, that has not been done under the Bill. We might return to that on Report.

The hon. and learned Lady has raised a number of very valid points, but I am not persuaded that anonymity in sex offence and rape cases particularly will be so destructive to the process of justice. I do not share that view. She knows my opinions on that.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

In just a moment.

The fact that there are low conviction rates for sex offences—rape is one of them, but I accept that child sex offences are another—is something that can properly be taken into account by Parliament when bearing in mind the destructive effect of allegations being made. I must say that, having attended the Operation Sapphire briefing yesterday, I am not persuaded by the argument that the introduction of anonymity destroys the possibility of investigation. To begin with, I note with interest that the larger number of those in the Committee Room are willing to contemplate anonymity up to the point of charge for a wide number of offences, but that is precisely the period when the police are investigating an offence. They would, of course, respond if someone were to come through the door and say, ''I hear that Mr. So-and-So has been charged. I would like to tell you that exactly the same thing happened to me four years ago.'' As was conceded at yesterday's briefing, the police think that that is likely to happen in only a small number of cases.

I do not think that the interests of justice would be so severely handicapped by anonymity being granted

right through the trial process, for either rape or child sex offences.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Although there have been high-profile and spectacular cases in which people's rights have been severely damaged by publicity and the publication of information and allegations, does the hon. Gentleman agree that more people have probably been damaged by information being suppressed? Some of the biggest child sex scandals and incidents, some of which have occurred within the Church, have only come to light and been properly dealt with after high-profile campaigns reliant on the publication of allegations.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Lady raises a huge topic and I am in danger of straying from what we are considering. We had an interesting debate on that in Westminster Hall some months ago, triggered by the hon. Member for Crosby (Mrs. Curtis-Thomas), and the simple answer is that it cuts both ways. The hon. Member for Romsey is right that child sex offences rely on the silence of children and often only emerge many years later. Unfortunately, there have also been cases in which serial allegations have been made by children who may have had damaged backgrounds and some have resulted in miscarriages of justice. It is a highly difficult area—as difficult, if not more so, than rape allegations. I accept the hon. Lady's basic premise, but there is another side to the issue.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

Many Committee Members have mentioned the pain and dishonour caused to someone by an allegation against them of any sexual crime, in particular rape. Many women also have to suffer silent pain and do so for the rest of their life, because of the perception among them that they are unlikely to get a fair deal out of the trial system. That receives no publicity in the newspapers or elsewhere. If we were to provide anonymity for defendants, surely that sense would be increased rather than decreased. That would harm justice.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I entirely accept the hon. Gentleman's first argument that large numbers of people will suffer as victims of crime—particularly sexual crime—from a sense of powerlessness that they will never be able to find redress. It is important that we consider that and investigate ways in which it may be possible to help. As I already said, it is unfortunately a difficult area because of evidential difficulties. Juries do not suddenly think that it is all right for women to be raped or children sexually abused, but it is often difficult to resolve the underlying issues and satisfy themselves that someone is guilty—the test that they are asked to apply.

That said, I am not persuaded that anonymity for defendants plays a large role in giving complainants the impression that they are being neglected or that their allegations are not being taken seriously. When I considered the issues, it crossed my mind that if we had anonymity for defendants, the conviction rate might rise. The surrounding publicity creates an atmosphere that is not conducive to good decision making and may prompt juries to acquit more readily, because through the trial process, and surrounded by that publicity, their sympathy may move to the

defendant and prevent them from focusing on the facts.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 6:00 pm, 9th September 2003

The hon. Gentleman raised an important point. Much has been made of the fact that any anonymity would be detrimental to complainants. The example of the 1970s and 1980s is often cited. Dose the hon. Gentleman agree that that was in a different day and age, when rape attracted a far greater stigma and women were less likely to come forward? He would probably agree that more women are currently encouraged to come forward. I do not understand how the anonymity of the accused affects that ability, or the woman's security.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I agree with the hon. Lady; her analysis is correct. At one time, the rape of a person by a stranger in a lane would have been regarded as a terrible, abhorrent crime. I accept that in a previous time, when people's views of sexual mores were stricter and sex outside marriage was often regarded as something to be frowned on, a stigma was attached to a complainant. Of course, allegations of rape within marriage could not be made, because it was not possible to do so.

The hon. Lady is right, but a revolution has taken place. One has only to consider public attitudes. I am confident that juries regard non-consensual sexual intercourse as a serious issue. I do not take the view that they would say, ''Oh well, that is the prerogative of young people. If they had all been drinking, it is six of one and half a dozen of the other.'' I genuinely believe, from everything that I have seen, that such matters are treated seriously. It is precisely because they are treated seriously that juries think long and hard about convicting, as my hon. Friend the Member for Woking said. The consequences are so draconian that juries follow the judge's directions to the letter. If they are not satisfied and they are unsure, they acquit, and if they are satisfied, they convict. In those circumstances, they expect heavy sentences to be meted out on those who have transgressed. I am confident that that is the current public climate, which is why I said what I did a moment ago. I was interested in the hon. Lady's response. Juries are always told that they must ignore all the surrounding publicity; they are told, ''Members of the jury, you must not be swayed by emotions, or by what you have seen in the newspapers. Please focus on the evidence.'' Oddly enough, surrounding publicity can be as adverse to the interests of justice in getting convictions as it is in getting acquittals. That is an argument in favour of anonymity that we might wish to consider.

I want to bring my remarks to a close and explain what I wish to do. There are two separate issues. The Minister and the Home Secretary have cottoned on to the argument building up in the national press, which has involved exchanges of e-mails between the hon. and learned Member for Redcar and I. They have come out with an apparently sensible line, saying that they do not think that they can do something about anonymity in rape cases and do not want to single out such cases. However, they acknowledge that publicity

surrounds the investigation of offences and want to come up with a blanket policy covering all offences to protect people at least up to charge. That is a good idea, although I am bound to say that I suspect that a voluntary agreement will not work. It will not work, because unless it is on the statute book and ready to be used as a blunt instrument to clobber the press, they will never stick to a voluntary agreement. It is not realistic simply to rely on the police not spilling the beans. They have been spilling the beans on that for a long time and that habit is institutionalised.

Notwithstanding the fact that I accept what the Minister said about confining anonymity to rape cases until charge, I still think that that is something worth voting on. It is something on which the Committee should have the opportunity to express a view. I want to press amendment No. 24, which deals with anonymity until charge, to a vote.

On the wider issue of anonymity in rape cases, there are arguments both ways, but I am mindful of the fact that the Minister will, in any event, have her way on the deletion of the clause. I accept that the clause is not satisfactory, and I have not tabled an amendment that I would regard as sufficiently satisfactory to replace it. I will not stand in the Minister's way on that, although I will not support her either. I will, however, go away before Report and see if there is anything else that we can come up with that might widen the scope generically on anonymity through the child process in relation to all sex offences, but I accept that it is a difficult issue. I would want to consult others before I did so.

I hope that by the time we come to Report, the Home Secretary, who seems to have picked up the public mood of disquiet on the issue perfectly accurately, will be able to come forward with some cogent proposals that might mean that we can have general agreement. I accept that we have used the vehicle of the Bill to raise some wider concerns. There is no harm in that: that is what Standing Committees can be all about. I am grateful for the opportunity to raise those concerns. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 24, in

clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert

'a right to anonymity until charged.'.—[Mr. Grieve.

]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Division number 1 Adults Abused in Childhood — Clause 2 - Anonymity of defendant in rape etc. cases

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question negatived.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at seven minutes past Six o'clock till Thursday 11 September at ten minutes past Nine o'clock.