Regarding Whether The Accused Identity

Introduction

This paper purposes to provide arguments as to whether it is right for the law of England and Wales to be changed so that the identity of someone accused of a serious sexual offence is not made public unless and until they have been found guilty of that offence. In this regard, the paper will first explain the current law in this area whilst explaining why someone might legitimately hold the opinion that anonymity until conviction should be granted to those accused of a serious sexual offence, and why someone might hold contrary views.

The amended Sexual Offences Act 1976 significantly introduced the concept of anonymity for individuals accused of serious sexual offences. However, this idea was reversed when the Criminal Law Revision Committee in England and Wales argued that the principle of equality for the complainant and the accused posed as a false comparison against the defendants. As such, the report failed to provide a reason for the exception. It is evident that the present law of England and Wales, in line with the amended Sexual Offences Act (1992) stipulates the following: (1) where an allegation has been brought forth against a person and in which this Act applies, the name, address or picture of that individual shall be published for the public in England and Wales.

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Moreover, the person’s identity will not be included in any relevant programme for the public in England and Wales. There was a serious debate, in the Sexual Offence (Amendment) bill of the year 2003, which extended to the anonymity of defendants. The Home Affairs committee produced a report, which suggested that anonymity needed to be granted to defendants, in order to protect the innocent suspects from public reputation damage until they were proven guilty, whilst safeguarding the public interest in free reporting of proceedings related to crime.

Arguments for a change of Law

It is evident that crimes related to sex often fall within a unique order as compared to other forms of crime. Worse is the stigma that is attached to sexual offences, especially those involving children are perceived as enormous and the accusation can cause devastation to an individual. Moreover, they interfere with an individual’s privacy rights, and their family through the scrutiny of the public debate. In this regard, in an instance where the accused is not charged, the individual should not be publicly vindicated by acquittal. In line with this, is the devastation of an individual’s private life, which was caused by the media scrutiny in the case of Sir Cliff Richard OBE v The British Broadcasting Corporation. Sir Cliff Richard was accused of a child sex offence and as such, the police consequently raided his home on a live television, yet he had not be arrested or charged.

Moreover, it is also worth noting that public scrutiny threatens an individual’s right to be thought of as innocent until the person is proven guilty. This is proven in the case of the Former Deputy Speaker, known as Nigel Evans, who faced various headlines because of his one-year case that was highly incriminating. Regarded as untypical, is the statement provided by the complainant, which stated that Nigel had put his hands down his trousers twice. The court declared that this was a drunken lechery and could not be considered a criminal sexual assault. It is clear that no less incriminating are the media reports, which concern individuals that are not ordinarily perceived before the public. Notably, acquittal only offers little prospect towards public vindication. This is owing to the fact that the damage made to Nigel’s reputation made people stalk him throughout the course of the general election. Moreover, Nigel himself made remarks that no one could ever recover from having been wrongly accused of crimes such as sexual assault. Similar to this is the cursory internet search relating to a newspaper reporting, which produces a case of a Newport man that was accused, charged, and even acquitted for both sexual assault and rape. During his trial, various local headlines, emphasized on the accusation, thereby spinning incredulous edge towards the indignant defendant’s arguments. Significant to note, these experiences are faced by the defendants, especially in the course of the pre-charge period, especially the time that there is no case to answer, as well as no legal process that has been investigated.

Arguments against a change of Law

It is significant to note that there are opponents of reform, which then argue that publicizing a defendant’s identity could encourage other victims to come forward, thus citing good examples such as Stuart Hall, and also Rolf Harris. These are men who would never have otherwise faced justice. However, it can in some instances be right that the details of an individual’s private life be held up, due to mere suspicion, in order for them not to be subjected to the scrutiny of the public, thereby, attracting other accusers. Noteworthy, the English law does not apply similar rationale for retaining evidence, in which case, the provisions of The Police and Criminal Evidence Act 1984 (Code B, section 7 c) allows the retention for trial use only, in order to facilitate related proceedings and also in connection with such offences. Moreover, this is in line with the provision of The Protection of Freedoms Act (2012), section 3, which provides strict limitations on the evidence of DNA fingerprints. As such, it is clear that effectively advertising the details, as well as the identity of a suspect related to a sexual offence allegation, prior to acquiring enough evidence that can establish a charge is in itself an effective fishing expedition, referred to as a ‘flypaper’ investigation. Moreover, it does not need to be accorded the establishment of legal principles.

Another argument is that defending anonymity of the defendant may imply that there is an existing presumption of doubt as relating to the complainant’s credibility. It is worth noting that there exists little evidence that can be used in supporting this argument. Moreover, if there was, it is clear that it would certainly concede that making a defendant’s name public would testify the authenticity of the complainant, thereby, bringing forth the guilt of the defendant, which significantly is contrary to the presumptions of justice.

On the other hand, it is arguable that various evidence related to multiple incidences speculatively often lead against a defendant, which then undermines the highly evidential burdens of proof that may be necessary for the administration of sound justice. Additionally, it is evident that publication of a case often increases risks associated with claims process that may be abused by other individuals who may otherwise, take that as an opportunity for revenge and compensation, in an instance where the accused is eventually evicted. Moreover, it is significant to note that there are various inherent difficulties, as well as complexities of cases prosecution and this should be a major issue to consider in defendant anonymity. It is also clear that the more complaints that may be brought forth due to publicity may lead to greater prosecution, thus aiding in building a case. If the complainant’s evidence is undermined, then chances are that other individuals’ evidence will have to be tainted in the jury’s mind, thereby, aiding the defendant not to obtain guilty verdicts.

“Ultimate Test” and the court powers

The decision to order for reporting restrictions by the court is referred to as the “Ultimate test.” which balances Article 6, and 8 as stipulated in the European Convention on Human Rights. Moreover, article 10, is concerned with the public interest and the open justice principle. Precisely, article 8, which relates to the right to respect an individual’s private life is broadly regarded as a personal space, in which case, the court considers that an individual should be free to be himself or herself, as regarding the idea of the reputational damage; this is as stipulated in the case of R v Broadcasting Standards Commission. On the other hand, the definitions provided in various sexual offences cases as provided in article 6, relating to the right public hearing includes the mandate to exclude the public from the court, in order to safeguard the parties’ private lives. Article 10 provides the right to express oneself freely. As such, the public interest is broadly understood, as it contributes to matters related to public debate and whose impacts are broadly felt as implied in the case of R v Sussex Confirming Authority& Sons' Brewery (Brighton) Ltd. Overall, the court has powers to impose the anonymity orders as derived from the convention itself, thereby, requires no further justification.

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Conclusion

From the above arguments, it is evident that over the years, the idea of whether the law of England and Wales should be changed so that the identity of a defendant involved in a serious sexual offence is hidden until they have been found guilty is a topic of both social and legal debate and also has a polarized opinion. However, this paper also proves that the court has powers to either impose anonymity orders or not, in accordance with the provisions of the European Convention on Human Rights.

The following research report presents the sources of information (Books and Journals, Internet sources, Texts, Cases and statutes) that were used in conducting the research in this essay. They aided in answering the title question by providing evidence on the current law in this area. Moreover, the information aided in explaining why someone might legitimately hold the opinion that anonymity until conviction should be granted to those accused of a serious sexual offence, and why someone might hold contrary views. Most significantly, they assisted in setting out personal views on this issue, including whether to consider that the identity of someone accused of any offence should not be made public until conviction.

The law in England and Wales should be changed so that the identity of someone accused of a serious sexual offence is not made public unless and until they have been found guilty of that offence

  • The following reference books and journals were derived from www.googlescholar.com.
  • Booth, C. (2017). Good Things Don't Come to Those Forced to Wait: Denial of a Litigant's Request to Proceed Anonymously Can be Appealed Prior to Final Judgment in the Wake of Doe v. Village of Deerfield. BCL Rev., 58, 205.
  • Dodd, M., & Hanna, M. (2018). McNae's essential law for journalists. Oxford University Press. Gilden, A. (2016). Punishing sexual fantasy. Wm. & Mary L. Rev., 58, 419.
  • Mooney, J. L. (2014). Protecting Children from the Risk of Harm? A Critical Review of the Law’s Response (s) to Online Child Sexual Grooming in England and Wales. In Minding Minors Wandering the Web: Regulating Online Child Safety (pp. 283-299). TMC Asser Press, The Hague. Thomas, T. (2015). Sex crime: Sex offending and society. Routledge.
  • The following internet sources were used in this essay, owing to the fact that they are connected to the research and provide useful information on the same.
  • The Spectator (2013). The coalition should have extended anonymity on rape cases. Retrieved [online] from [accessed on 18th July, 2018].
  • The Spectator (2015). Nigel Evans interview: why we need anonymity for rape suspects. Retrieved [online] from [accessed on 18th July, 2018].
  • Wales Online (2015). Newport man accused of raping teenager tells court it was him saying 'stop' not her. Retrieved [online] from [accessed on 18th July, 2018].
  • These are useful points of reference that provide evidence to certain provisions in this essay.
  • Article 10 of the European Convention on Human Rights
  • Article 6 of the European Convention on Human Rights
  • Article 8 of the European Convention on Human Rights
  • Section 3 of The Protection of Freedoms Act (2012) Sexual Offences (Amended) Act 1976
  • The Police and Criminal Evidence Act 1984

Conclusion

Overall, it is evident that the above sources provided useful information that aided in providing sufficient and reliable answers to the research title. This could then make this piece of work worthy of future reference.


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