Right up until the late Seventies, no one in a rape trial enjoyed anonymity. But the disclosure of identity was found to discourage women who had suffered attack from coming forward to testify. So when the Sexual Offences (Amendment) Act was being prepared in 1976, it was decided that the identity of the complainant should be protected. Parliament also felt a need, however, to be even-handed and enacted that this right should be extended to the defendant. In the mid-Eighties, a case in Wiltshire, where police were prevented from appealing to the public to help catch a man suspected of serial rape (he subsequently raped again), caused outrage. The 1984 independent Criminal Law Review Committee recommended that anonymity for defendants in rape cases should be abolished. This was accomplished in the 1988 Criminal Justice Act.
Over the years the anonymity question has thus been debated many times, and wise people have taken different views. But time has not altered the essential options available. These are that anonymity should be granted to no one, that it should be given to all, that it should be decided by the discretion of police or courts or, finally, that the status quo should prevail.
Those who, like the Lord Chief Justice, argue for defendant anonymity do so on the basis that the embarrassment caused to the accused equals that of the complainant. Violent sexual crime is so abhorred that those eventually acquitted suffer in a way they do not if charged with, say, burglary or fraud. In rare cases the police could, of course, be allowed to exercise discretion in naming a suspect.
This is a powerful argument. But it has big disadvantages. Critically, it represents an extra fold in the cloak of secrecy that some see descending on our judicial system. The use of screens, of videotaping and of anonymity all tend to obscure the spectacle of justice being done. Because there is an essential arbitrariness about protecting the identities of rape defendants and not those of people accused of murder or child abuse, there must be a fear that this would represent special treatment for those accused of a terrible crime. Many women would particularly resent it.
The position of those who argue (as the late Sir Nicholas Fairbairn did) that women in unsuccessful rape prosecutions should be identified is more easily assailed. This would re-create all the disincentives for women to come forward and is also predicated on the mistaken belief that it is the victim who prosecutes the defendant. It is not - the state does it on our behalf.
The call for anonymity to be granted or withheld at the discretion of judges or police forces is seductive but unsustainable. Each unpopular decision would come under assault, turning the process into a political bear garden. Which leaves us with the status quo, where "in a system of open justice, some discomfort for defendants who are subsequently acquitted is inevitable". For once, Michael Howard, who spoke those words, was right.Reuse content