Anthony Scrivener: When the public cannot know the identity of evil-doers

Open justice is a principle that has to be subject to inroads
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The Independent Online

A father repeatedly beat and raped his two daughters over a period of more than 20 years. His attacks led to 19 pregnancies and he fathered nine children. Yet his identity has never been revealed in the criminal proceedings against him. Is this really justifiable? The same approach seems to have been taken to protect the family in the Baby P case, although the facts were rather different.

The overriding principle in legal proceedings is that there should be open justice – nothing should be held back or kept secret. The public are rightly suspicious of court proceedings behind closed doors. It is a fundamental principle which provides confidence in the legal system which the media are usually quick to defend. But Parliament has long realised that it is necessary to allow inroads into this principle in certain types of case.

These justifiable inroads are necessary to ensure a fair trial. It may be necessary to protect witnesses said to be under threat so that they will give evidence. Then there is the special position of children and young persons who should be protected from harmful publicity. This is obviously a very sensitive area for the courts as it requires a difficult balance to be struck between the openness principle and the interests of the individual concerned. It engages Article 8 of the European Convention on Human Rights.

Parliament has sought to solve this difficult situation by imposing a statutory prohibition against disclosure or publication but then gives the trial judge a discretion to order otherwise. The appellate courts give guidance by identifying the matters to be taken into account when exercising the discretion, but ultimately it is left to the individual trial judge to decide.

Thus for example disclosure by the police or social services of information regarding child abuse should only be made if there is "a pressing social need". The judge is directed to take into account the apparent reliability of the allegations, the interests of the party requiring disclosure, and the degree of risk posed to anyone if disclosure is made. These considerations are easy to state but in practice difficult to measure.

The criminal courts have to take into account similar considerations where the prosecution are seeking not to reveal the identity of a witness they wish to call but who it is claimed has been threatened.

In all these cases it is extremely difficult to balance the risks involved between ensuring a fair trial and securing proper protection for the individual. It is often difficult for the judge to resolve disputed issues of fact since the trial has not yet taken place. There have been cases where the court has ordered disclosure and the prosecution have dropped the case rather than comply with such an order.

The special protection for children prevents anything being disclosed which could lead to the identification of children or young persons, whether they are a victim or an accused or a witness. The prohibition extends widely and covers not only name and address but school or place or work and also forbids photographs.

In limited circumstances Article 8 of the European Convention on Human Rights may require an order protecting the anonymity of a defendant in criminal proceedings where publication of his identity would harm the interests of a child. This is the principle which is relied upon in this case.

It is often difficult to anticipate how a particular judge will exercise his discretion. The tendency in criminal cases is for the court to make such orders as to ensure that there is a fair trial and this often requires full or partial disclosure. It is different where children are involved. In such cases, understandably, the courts tend to treat the protection of the young person from publicity as the paramount concern.

But what about this incestuous rapist father? Should he have been afforded protection?

In criminal cases the appellate courts have often urged the trial judge to seek to find alternative ways of achieving a proper balance between the rival interests. In a case so extreme as this there is an obvious alternative which would allow a proper balance to be struck between the fundamental principle of openness and the interests of the children or grandchildren.

There is little doubt that the innocent victims in this tragic case would welcome being given a new identity and an opportunity to begin a new life in a new environment. It is probable that this is or has been under consideration already. If this were to happen then the interests of the victims are protected and there is no reason why the name of this criminal should not be published and the principle of openness will have been preserved.

The writer is a QC and former chairman of the Bar

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