HC Deb 08 July 1999 vol 334 cc1258-67

'.—(1) Subject to subsections (2) and (3), no matter relating to any person accused or suspected of committing a sexual offence shall be included in any publication if it is likely to lead to members of the public identifying him as a person involved in the offence unless and until he is convicted.

(2) A court may direct that a person to whom subsection (1) applies may be identified if identification is necessary to secure the arrest of that person or is otherwise in the interests of justice.

(3) A court making a direction pursuant to subsection (2) may give such ancillary directions as it thinks fit, having regard to the interests of justice and the interests of the accused or suspected person'.—[Mr. Greenway.]

Brought up, and read the First time.

Mr. Greenway

I beg to move, That the clause be read a Second time.

Previously, whenever the House debated a criminal justice Bill—certainly once in each Parliament—we debated the death penalty. Those days have gone, but I have an inkling that, in future, whenever we debate criminal justice matters, particularly Bills that refer to sex offences, we are likely to discuss the offence of rape, the structure of that offence and the way in which rape trials are conducted.

Part of the reason for that is the fact that the Bill introduces changes that, as the Minister knows, are controversial. We had several constructive debates about them in Committee. In addition, the Home Office is undertaking a detailed research study into the offence of rape, entitled "Question of evidence?: investigating and prosecuting rape in the 1990s".

Earlier this week, some hon. Members who are in the Chamber attended a seminar that the Minister kindly arranged to discuss some of the review's objectives. I make a suggestion to the Minister: will he consider extending that review so that it considers the anonymity of defendants in sex offence cases, particularly those accused of rape? I make the suggestion for several reasons. The first is that the Bill proposes important changes that are clearly designed to protect victims. Clause 34, in particular, provides for an absolute ban on defendants in rape cases cross-examining rape victims. We appreciate why the Government propose making that provision.

We also know from our debates in Committee, and from representations that all hon. Members have received, that the legal profession is divided on the provision. Some lawyers have said that the Government should go further, whereas others—including the Law Society, in stating the official view—have said that it is entirely the wrong thing to do. I dare say that in this debate we shall discover that divisions on the issue are not between, but within, political parties. Victims' interests are unquestionably being provided for in the Bill. I am happy about that, as the case for such provision has been well made. However, what are the consequences of that provision for the interests of defendants?

Secondly, although the Home Office review will consider all of the issues relating to sex offences, it makes some basic assumptions. I want to deal with one specific assumption, which is that any application of the criminal law must be fair, necessary and proportionate. On the basis of that principle, I want to question whether there is a case for the House again to consider whether, in the interests of fairness and justice, there should be a restoration of defendants' anonymity—particularly in rape cases, but also in cases involving other sexual offences.

The history of the matter is that the Criminal Justice Act 1988 amended the law on anonymity for complainants in rape cases so that anonymity commences when an allegation of rape is made to police and not—as provided in the Sexual Offences (Amendment) Act 1976—when a defendant is formally accused. The 1988 Act also removed the anonymity of defendants in rape cases.

Subsequently, in 1994 there was a review of the anonymity provision. My right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), in answer to a written question, confirmed that he was satisfied that the present law, which affords anonymity for complainants in sexual offence cases, but offers no special protection for defendants, strikes a proper balance between the principle of open justice on the one hand and the need to ensure that victims of sexual offences are encouraged to come forward on the other."—[Official Report, 18 February 1994; Vol. 237, c. 1029.] The history of the matter is important to our consideration of the provision for two reasons. First, one of the justifications for the changes in the Bill to the conduct of rape trials is that they will encourage more rape victims to come forward—rather than being discouraged from doing so because of the publicity given to one or two notorious cases in which victims were cross-examined, ruthlessly and without any protection from the court, by the alleged assailant.

However, since my right hon. and learned Friend answered that written question, several incidents have caused concern and they prompted me to table the new clause to give the House an opportunity to consider whether we should restore the anonymity of defendants in the interests of fairness and natural justice and to restore the balance that the Bill is disturbing.

6.30 pm

In April 1995, Mark Jackson, a 21-year-old chef, hanged himself. He had been accused of rape by a former girl friend. The Crown court jury at Exeter acquitted him, but the story had reached his home town of Wigan 250 miles away, where the local newspaper headline screamed: Jilted man, 21, raped ex-girlfriend". Mark was named and identified for all to see. He could not bear the shame and on the morning of Sunday 9 April his mother found him hanging from the staircase.

Before Christmas 1996, a young man of 25, Dennis Proudfoot, gassed himself in his car. He had been charged with rape and was terrified of the effect of the publicity on him and his family. A few days after his death his parents received a letter from the girl admitting that he had not raped her.

Those are just two of a catalogue of tragic cases that have occurred in the past few years—since my right hon. and learned Friend last reviewed the issue as Home Secretary—in which accusations that were malicious or that, even if they had substance, ended in acquittal resulted in a defendant's life being ruined. We have been right to explore giving greater protection to victims, but we should also take this opportunity to give consideration to the innocent defendants of rape allegations whose lives and whose families' lives have been ruined by the glare of publicity. One could take up more time with other cases, but I am conscious of the fact that other hon. Members want to speak and we are time limited.

This is not just about men accused of rape seeking some justice through anonymity unless or until they are convicted. Sadly, there are also cases involving women. I understand that on 7 February 1997 the General Medical Council found a female doctor not guilty of indecently assaulting a woman patient. She was subjected to the glare of publicity and her career and personal life have never recovered. I accept that the procedures of the GMC are different from those of the courts, but the principles are the same. Therefore, I felt it right to bring the issue before the House again.

I have one further important point for the Minister. Clearly, this is an exploratory debate, and we do not intend to press the matter to a vote. However, I want the Minister to consider extending the review of how rape and sex offences are investigated and prosecuted, and I would like the anonymity issue to be brought within the purview of the review.

I wish to refer to the incident that prompted me to propose this as a matter for discussion. We have just discussed the reporting of criminal incidents involving young persons under 18 and I have referred to the case of Adam Dent, a 15-year-old who was accused of rape and identified in the press, but not subsequently charged. That case is one of the reasons why the Opposition have agreed to accept the Government's proposal for further curbs on press reporting of criminal incidents to protect the identity of the defendant.

If it is right to give protection and anonymity to a teenager falsely or maliciously accused of rape—as is proposed in clause 44—what is the case for restricting that prohibition only to young men under 18? An accused person aged 17 would be protected, but someone aged 18 would not. Is that a fair, just, balanced or logical conclusion? I am not sure that it is, as is made clear by the two or three cases that I cited which involved young men—maybe a little older than Adam Dent—in similar circumstances.

I wish to drawn the House's attention to the potential scale of the difficulty. In the preamble to the Home Office research study paper, there is an analysis of the attrition process in rape complaints. Although there has been a marked reduction in the number of rape complaints where the cases were subsequently not recorded as crimes, some 25 per cent. of rape allegations are still not recorded as crimes. The most common reason for that is that the complaint was believed to be false or malicious. In over one third of such cases, the complainant withdrew the allegation.

It is perfectly feasible that, in each of those cases, the identity of the persons accused would have been revealed to the press. There could have been some lurid press coverage, with all the consequences of that for that person and his family. We cannot conclude that this is just a tiny problem. It is a significant difficulty and one to which the House—and the Minister—should give serious consideration.

Mr. Beith

We support the aim of the new clause. On Second Reading I asked the Government to consider the issue of anonymity for those accused of sexual offences. Complainants rightly have anonymity. As the hon. Member for Ryedale (Mr. Greenway) said, it encourages the continuance of a case in an area where there is considerable fall-off, for the understandable reason that it is an extremely harrowing business to add to the awful experience of rape all the trials and tribulations that attend on pursuing a court case.

The case for anonymity of the accused is strong. There are two main reasons for granting it. First, the anonymity of the victim can be undermined when the defendant is known. It is also extremely common in rape cases for it to be possible to deduce who the victim is from other extraneous circumstances, such as the location. Lack of anonymity for the defendant undermines our ability to protect the complainant.

Secondly, the social stigma of a rape accusation is very great and may long survive an acquittal. Reputations can be ruined and marriages destroyed simply by allegations. In cases where the allegation is false and malicious, the accuser has the protection of anonymity, so it is reasonable that in those circumstances, which are different from those in other cases, the defendant should have the same right. Of course, the anonymity would disappear on conviction.

The hon. Member for Ryedale spoke of people who were so traumatised by the allegation that they took their own life, even though it subsequently emerged that no rape had occurred. It is clear that people in such cases are under extreme pressure.

When the Crime and Disorder Bill was in the Lords, my noble Friend Lord Goodhart tabled an amendment to restore the anonymity of defendants in rape cases, which was part of our law for a considerable time. The then Solicitor-General, Lord Falconer, accepted that there was high social stigma and that other problems existed but did not in the end accept the argument. He relied on the fact that openness is a fundamental principle in our justice system and said that as defendants are generally named, there was no reason why those in rape cases should receive special protection. We do not believe that his arguments counter the strong arguments that I have set out.

I hope that the Government will re-examine the issue carefully. There are good reasons for surrounding rape cases with special provisions, because if we did not it would be impossible for many guilty people to be brought to justice, but we are left with a problem about those who are falsely or maliciously accused. Given all the other protections that exist, it would be appropriate to restore the anonymity that our law once provided for defendants in such cases.

Mr. Boateng

The law as it stands offers anonymity for complainants in sexual offences, but it offers no specific protection for adult defendants. Anonymity for defendants in rape cases was originally introduced in 1976—by a Labour Government, as it happens—and was repealed in 1988—by a Conservative Government, as it happens—following a recommendation by the Criminal Law Revision Committee.

However, this is not a matter for party politics. It is a very difficult and complex issue that goes to the heart of the wider public interest in court proceedings. In an earlier debate, reference was made to the literal meaning of the term "public interest", and to the public interest in having freedom of information about what goes on in court.

6.45 pm

The Criminal Law Revision Committee took the view that people accused of rape should not be singled out for special protection while other defendants could be identified. The Government in 1988 agreed. They were not convinced that rape defendants should be treated differently from defendants against whom a different but equally serious offence is alleged. The Criminal Justice Act 1988 therefore repealed the relevant measure.

I listened with interest to the arguments advanced by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the hon. Member for Ryedale (Greenway). They said that rape carries a special stigma, but people charged with an offence of dishonesty at work or in connection with their business, for example, and who are subsequently acquitted would say that that charge carried both a stigma and a consequence that could threaten their livelihood.

Balancing stigma and post-acquittal consequences involves arguments that are by no means clear-cut. Should people charged with an offence of dishonesty in connection with their business also have protection? The consequences could be just as severe, and the stigma just as great. If they are not to have such protection, why not? Those who propose a return to the law as it was before 1988 must have a convincing response to that dilemma. I am not entirely certain that that has been demonstrated by those who have argued this evening that the 1988 repeal should at least be explored.

Mr. Beith

I remind the Minister that rape differs from other offences in that, in rape cases, anonymity is given to the complainant, which increases the possibility of a false and malicious allegation. The innocent defendant in such a case will ask how it can be right that the person making the allegation can have anonymity, whereas the defendant cannot. In that sense, rape is different from other offences.

Also, I meant to point out that the new clause would allow the court to break anonymity where the interests of justice required it.

Mr. Boateng

I shall come in due course to the powers that the court, by virtue of its inherent jurisdiction, already has in this matter. The right hon. Gentleman maintains that one anonymity should be balanced with another, but the contrary argument has been aired in debates throughout the afternoon, and it is that the public have a right, and an interest, in knowing what goes on in court. That argument must be addressed in determining where the balance of public interest lies.

We are satisfied that the present law strikes a proper balance between the principle of open justice, in which the public has the wider interest, and the very important need to ensure that victims of sexual offences are encouraged to report such crimes. We are not convinced that there is a special case for infringing the principle of open justice regarding defendants in sexual offences cases.

I have nothing but sympathy for the relatives of those in the cases offered by the hon. Member for Ryedale who were driven to suicide by their sense of shame and stigma at the allegations to which they were subject. There is genuine concern that defendants will be deeply distressed by being publicly named in connection with a sexual offence. Even if subsequently found not guilty, people may suffer great distress because of publicity given to their case.

Sexual offences cases are particularly heinous, and proceedings inevitably attract much public interest. However, the same can be said of other serious crimes, such as murder, in which defendants may be acquitted. Allegations of indecent assault or gross indecency can carry enormous stigma. Do those who make the case for change suggest that defendants accused of those offences ought to be protected by the cloak of anonymity?

Though the suggestion is well intentioned, to offer anonymity to defendants in sex cases would encourage others facing serious charges to argue—with some legitimacy—that they face embarrassment and distress and should be protected from press and public attention. We must ensure equality of treatment among defendants.

New clause 2 refers to a person neither accused nor suspected of having committed an offence. After acquittal, a person is neither accused nor suspected, and the new clause would not achieve what the hon. Member for Ryedale wants. We are not satisfied that the reform is justified. The hon. Gentleman suggested that the sex offences review might deal with the point, but it falls outside the review's terms of reference, which are to consider the law, not procedural or evidential issues.

The Contempt of Court Act 1981 goes some way to addressing the concerns expressed by the right hon. Member for Berwick-upon-Tweed. If there is a need to avoid publicity, the court has the power to act to avoid a substantial risk of prejudice to proceedings. The court may order postponement of publication of any report of proceedings for whatever period it considers necessary. In addition, where a court decides to withhold a name from the public during a trial, it has the power to prohibit publication entirely.

The courts, mindful of the need to preserve the principle of open justice, have held that that power should not be used merely for the comfort or feelings of the defendant or to enable defendants to avoid unwanted publicity. The powers should be used only in limited circumstances, such as protecting the identities of the young, or in cases in which witnesses might later be exposed to violence or blackmail, or where national security might be prejudiced. The Government agree with that approach.

We have been asked why we should protect only victims. Anonymity for complainants in sex offence cases is designed not only to protect them from hurtful publicity for their sake alone, but to encourage other victims of sexual assault to report the offence and to co-operate with the prosecution. Those arguments do not apply to the accused. Throughout our deliberations in Committee, it was pointed out—not least by my hon. Friends the Members for Luton, South (Ms Moran), for Don Valley (Caroline Flint), for South Swindon (Ms Drown) and for Stretford and Urmston (Ms Hughes)—that the current rate of attrition is such that nothing must be done to weaken in any way the capacity and confidence of a complainant to come forward and make her allegation; it is normally "her", but it could equally be "him" in relevant cases. The point was also made by other hon. Friends outside the Committee and in the considerable and weighty representations that I received. The point has been made time and again. The House must confront what the attrition rate in rape cases tells us; the proportion of rape cases recorded by the police and resulting in a conviction fell from 24 per cent. in 1985 to 9 per cent. in 1997. That is a matter of the gravest concern.

Mr. Oliver Heald (North-East Hertfordshire)

Is not the lack of balance in the anonymity provisions part of the problem? Since anonymity for the defendant was scrapped, the suggestion has been lurking in the courtroom, in almost every rape case, that a false allegation may have been made under the cloak of anonymity. A man's life may be ruined because of that anonymity. If both parties have anonymity, that suggestion cannot lurk in the background at court. I suggest that that would make a difference.

Mr. Boateng

We hear what the hon. Gentleman says, but I want to make it crystal clear why it is so important that the special position of the complainant should be recognised in law. I understand the point that the hon. Gentleman makes. However, if the complainant is in the same position as the defendant, that does not hold up the complainant's special position as deserving the special measure that the complainant should not be subjected to publicity.

Mr. Heald

Will the hon. Gentleman give way?

Mr. Boateng

I am not able to give way; the House wants to proceed. The hon. Gentleman can make his own speech.

I have listened carefully to the arguments, but, for the reason that I have just given, we are not able to accept the new clause. I hope that the hon. Member for Ryedale will not press it to a vote.

Mr. Greenway

The Minister's response was predictable. In fairness to him, I do not mean that as a criticism. As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) pointed out, whenever the matter has been raised in recent years, Ministers—in Labour or Conservative Governments—have given the same response. However, there is more to the matter than the Minister accepts.

The Minister asks whether the stigma and consequence of an unfounded rape allegation is different from that of any other crime. For two reasons, there is a significant difference. The first reason is that, in a case of rape or serious sexual offence, the victim has complete anonymity. In the case of virtually all other serious crimes, such anonymity does not exist.

If, for example, someone alleges that another person has stolen or embezzled money or property, and if the person concerned is acquitted, a stigma will be attached to the person who made the allegation, because—presumably—that person will have been found not to have told the complete truth. That in itself deters people from making false allegations of criminal offences: those who would make such allegations know that, if the case ends in an acquittal, it is they who will be made to look foolish and dishonest.

7 pm

Mr. Heald

It is noticeable that, since the scrapping of the anonymity of the defendant, the number of rape cases that have been successfully pursued and have resulted in conviction has fallen dramatically. Might not one reason for that be that the point is not lost on the jury that the person making the complaint is doing so anonymously, and is risking nothing? I am all in favour of that—I think that there should be an anonymity for the victim—but there is an unfairness, in that the defendant, who is not guilty at the time of the trial, has had his reputation ruined for life and, at the end of the day, it may turn out that the allegation is false. That unfairness is in the background of juries' thinking, and it is causing many of the problems.

Mr. Greenway

My hon. Friend makes a good point. We all accept that anonymity for the victim is an important prerequisite: it encourages women to report rapes or other sexual or violent offences, and I have no doubt that that is the correct approach. However, anonymity has a number of unfortunate consequences. For instance, as my hon. Friend says, someone who intends to make a malicious complaint has nothing to lose. The right hon. Member for Berwick-upon-Tweed made that point too.

Caroline Flint (Don Valley)

Does the hon. Gentleman accept that, although the woman's name may not be printed in the press, she has to stand up in open court, facing the person whom she has accused, in front of the jury, the judge and court officials, and make her case?

Mr. Greenway

All that is true, and is taken as read; but it does not explain another fact to which I was about to refer. The research paper that I mentioned earlier gives reasons other than those given by the Minister for the fact that the attrition rate is so high, and the fact that so few rape allegations result in convictions. One reason is that allegations are subsequently withdrawn—a factor that is not a feature of other criminal offences.

The Minister asked us, quite openly, to give a reason for the fact that rape and other sexual offences should be different. I think that we have made our case. The stigma, and the consequences, are different in the case of rape—not just because of the anonymity involved, but because it appears for some reason that an acquittal, or the withdrawal of an allegation, does not result in anything like the prominence in the press that was given to the original allegation. There is always the lingering suspicion that the acquittal was not justified, or that there was some truth in the allegation but not enough evidence to sustain the prosecution.

Mr. Heald

No smoke without fire.

Mr. Greenway

My hon. Friend states the reality that the House must face.

Mr. Heald

I am sorry to exploit my hon. Friend's good will, but I have become interested in the debate. Does he agree that the unbalanced position on anonymity has two bad effects? First, it is bad for the defendant if he is acquitted and people say that there is no smoke without fire. Secondly, it undermines the case of women who have been wronged and treated appallingly, because in court, they are undermined by the ever-present suggestion that they are making their accusation with the benefit of anonymity, while the man's reputation is on the line. That undermines cases that should be pressed home successfully to a conviction.

Mr. Greenway

My hon. Friend tempts me with a road down which I do not wish to go, because I do not want to dispel the spirit that existed within the Committee and encompassed some of the Government Members. However, he makes his own point extremely well.

We shall not have an opportunity to discuss this important issue again for a while, but time is pressing and in an effort to be brief, I missed out a page of my notes. One of the important points on that page is the one made by the right hon. Member for Berwick-upon-Tweed—that in rape cases, the lack of anonymity for the accused, or the defendant, or the alleged perpetrator leads increasingly to the anonymity of the victim being breached and her identity being disclosed.

The fundamental reason for that development is clear in the research: it is that the number of stranger rape cases as a proportion of all rape allegations is falling, but that the number of so-called acquaintance, intimate or date rape cases has increased substantially. Therefore, there is a far greater prospect that, by publishing the identity of the alleged perpetrator, the identity of the victim will be disclosed. It seems logical to conclude that, if the priority is to give protection and anonymity to a victim, any matter that undermines that anonymity should be a matter of concern for the House, and that some adjustment to the law is justified.

When he referred to the Home Office review of sex offences, the Minister said that the anonymity issue was outwith the scope of that review. That surprises me, because the document given to us at the seminar that the Minister kindly and helpfully arranged sets out the terms of reference for the review. They are: To review the sex offences in the common and statute law of England and Wales, and make recommendations that will: provide coherent and clear sex offences which protect individuals, especially children and the more vulnerable, from abuse and exploitation". I accept that the anonymity issue is not covered by that, or by the second requirement—that the recommendations should enable abusers to be appropriately punished". However, I suggest that the anonymity issue is covered by the third strand, which is that the recommendations should be fair and non-discriminatory in accordance with the ECHR and the Human Rights Act.

Even setting aside those cases in which a trial results in acquittal, and concentrating only on those cases in which the allegation is subsequently withdrawn and the woman admits that she was not telling the truth, I put it to the Minister that it is not fair and not non-discriminatory to give anonymity to rape and sex offence victims, but not to people who are, in many cases, maliciously and falsely accused. There is a human rights dimension to the question of anonymity for those who are falsely accused of rape and sexual offences.

It will be clear that I do not seek to press this matter further. Early Thursday evening, when the House is about to adjourn for the week, may be an unfortunate time to have this debate. [Interruption.] The hon. Member for Don Valley (Caroline Flint) laughs, but although I do not think that we shall have a long Third Reading debate, there was a statement that lasted an hour, and the Government have known for days that it would be made today.

The House ought to return to this issue. The other place will do so. I am grateful to the right hon. Member for Berwick-upon-Tweed for his support, and I ask the Minister to think again about including the issue in the important review of rape that his Department is currently undertaking. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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