With the debate around anonymity for rape defendants resurfacing yet again, it is worth remembering that the UK had a long experiment with the policy not so long ago. When anonymity for alleged rape victims was introduced in 1976, it was accompanied by anonymity for defendants. The policy stayed in place until 1988 when the laws changed, strengthening anonymity for complainants and abolishing it for defendants.
In recent years, this decision to scrap defendant anonymity is often cited as proof that it must be a bad idea. For example, Willard Foxton here.
The Thatcher government – not generally known for its strong stand on women’s rights – repealed it, because it had appalling consequences. Among other things, it meant that the public could not be warned when an accused rapist went on the run before conviction – as he was merely accused, he couldn’t be named.
I was curious about this. The link leads to a dead internet article from prisoners’ newspaper Inside Times. Through the Wayback Machine, I found the original, which quotes (then) Labour minister Maria Eagle in a letter:
Anonymity for defendants in sexual offence cases was repealed under the Criminal Justice Act 1988. It is important to note that the restrictions had caused practical difficulties: for example, if a man escaped custody before conviction, the police could not warn the public he was a suspected rapist unless the judge exercised his power to lift the reporting restrictions.
That is a pretty whopping “unless” right there [my emphasis]. It would also appear to be an entirely hypothetical scenario, there is no suggestion such a thing had ever actually happened. That made me wonder what the grounds actually were for the change in law in 1988. What ‘appalling consequences’ had the policy led to? It proved a fascinating exercise, not least because of the way this debate has flipped around between radical progressives and conservative traditionalists.
When the 1988 Bill was passing through Parliament, there was a proposed amendment from Robin Corbett MP. He was the principled and decent left-wing Labour MP whose proudest accomplishment (as his 2012 obituary noted) was to sponsor the 1976 Sexual Offences (Amendment) Act, which provided anonymity for rape victims.
In the ensuing debate, Corbett explained why defendants had been included in the original amendment, and why he was proposing to retain that. The majority of rape victims were not raped by strangers, he noted, but by their partners or close friends. It would often be impossible to ensure a victim’s anonymity if the defendant is identified. Corbett and those speaking in his support made clear what they believed to be the biggest problem at the time. As Labour colleague Gerald Bermingham MP put it:
The hon. Member has not read the new clause. He has avoided the central issue of the problem, which, to a large extent, lies with the sensationalising by the press of any major crime… Even before charge, details are given of the person detained in custody. Details of the offence are given, and the press is awash with the gory details of the allegation.
In other words, the argument being made in favour of retaining anonymity at the time were what we could broadly call pro-feminist – concerned with protecting rape victims and with concerns about the media sensationalizing sexual offence trials. At the division, those voting to retain anonymity for defendants included most left-leaning MPs, including any identifiably feminist women in the House, such as Gwyneth Dunwoody, Clare Short, Margaret Ewing and Maria Fyfe, who was shadow minister for women at the time.
It seems the entire Conservative party in the Commons voted to scrap anonymity for defendants. So what was their argument? As far as I can tell (sources here ,here, here and here) there was never any suggestion that there had been “appalling consequences” from introducing anonymity. There was a specific concern about a possible loophole through which a hypothetical escaped suspect might be protected from televised e-fits etc [the source of Eagle’s point above] but no suggestion it had ever happened. There is not a single incident mentioned of miscarriages of justice arising, of escaped rapists who cannot be identified in the media or anything similar. Not one.
Instead, there seem to have been only one argument raised at the time, and it was the principle of open justice. It seems that those who opposed anonymity for defendants had probably also opposed anonymity for anyone. There is a lot of harrumphing that defendant anonymity had not been recommended by the 1975 Helibron Report and that the then Labour government had gone further than they should have. As far as I can tell, the argument was strictly a traditionalist one – this is simply not how we do things in this country.
Now I should stress, none of this changes the arguments around the merits or dangers of defendant anonymity in 2015. As I have argued before, it seems to me the best solution might be to begin proceedings with an assumption of anonymity but allow plenty scope for judges to waive that if there is any suggestion that it might aid the investigation and process of justice, including identifying potential additional victims (or runaway suspects, for that matter). But whatever.
The awkward truth, I think, is that this is an issue where there are genuinely good arguments on both sides. It just so happens that “it was abolished in 1988” is almost certainly not one of them.