Defendant Anonymity

Anna Soubry Excerpts

Thursday 8th July 2010 Commons Chamber

[Simon Hughes]

I accept entirely what the hon. Lady says. She is right, which is why we need to proceed with caution. These areas are both sensitive and ones in which there is still prejudice and misinformation, and it is very important to distinguish between different categories of offence and activity.

We did not debate the whole issue of anonymity in the criminal justice system, nor other ranges of offence, but we concluded that a whole raft of changes should be made, only one of which was the proposal for anonymity. We suggested making more progress with special prosecutors for rape cases and an expansion in the number of sexual assault referral centres. Rape victims should be examined only by properly qualified forensic specialists who are trained in examining rape victims. A national rape helpline should be established. Special awareness training and education should be given to police officers and health and social care professionals to support male victims of rape. We opposed the Sentencing Guidelines Council’s proposals to allow the avoidance of jail for the perpetrators of rape if they show remorse.

[Anna Soubry (Broxtowe) (Con)]

Will the hon. Gentleman give way?

[Simon Hughes]

I hope that the hon. Lady will allow me to continue just for a second.

We requested that the Home Office commission a new study of why there is such a low conviction rate in England and Wales. We suggested a public information campaign to close the gap between the perception and the reality of rape. Only lastly did we suggest a change in the law—agreed after debate, discussion and a vote by a majority—to prohibit the media from identifying anyone directly or indirectly about whom a complaint of rape has been made, and until such time as they have been convicted.

It was therefore not surprising that the Government have looked at the issue, even though I accept that it was in neither the Liberal Democrat nor the Conservative manifesto. The public did not, therefore, become engaged on the matter in the election campaign. I am not defending the fact that the proposals are in the coalition agreement, but saying clearly that I am sure that if the outcome of this deliberation and the response to the Government’s policy proposal, which came from the Liberal Democrats, is a consensus in the House and around the country not to proceed, both parties are open to persuasion along that line.

I want us to go deliberatively, because there is a strong case for changing the law, but it is not a cut-and-dried, open-and-shut case. I hope that the rest of the debate is much less partisan than the beginning of it, because this is not a party political issue—[Interruption.] It is absolutely not a party political issue. People outside would not understand if we took partisan positions, and I absolutely encourage the Government to think like the Lord Chancellor, who was right that a non-whipped vote would be entirely appropriate. I am in favour of many more such votes on such matters, which are not proprietarily the view of one ideological group or the next.

--- Later in debate ---

[Glenda Jackson (Hampstead and Kilburn) (Lab)]

The hon. Member for Bermondsey and Old Southwark (Simon Hughes) hopes that this will be a non-partisan debate. The speeches that we have listened to this afternoon have been non-partisan in a party political sense. However, in relation to the policy that his Government are presenting, there is a marked lack of evidence that the proposed change is necessary, or that it would bring about any kind of improvement in convictions for rape, which, if I understood him, was at the centre of his argument.

The hon. Gentleman also hoped that given the amount of time the Government are affording to the debate, decisions would come about by consensus in the House and the country. How can there possibly be any consensus in the country if his Government do not enter into the widest, deepest and most detailed consultation? The question remains: why have his Government selected the offence of rape? Why should alleged perpetrators of rape alone, among alleged perpetrators of other crimes of violence, be afforded anonymity? Answer has come there none.

As we heard in the excellent speech by my hon. Friend the Member for Garston and Halewood (Maria Eagle), the implications of that proposal are wider if we go down that road. She touched on the issue of affording anonymity to teachers, and the hon. Gentleman’s Government have again come up with no detail of the alleged offence that a teacher might have committed. She gave the graphic example—and we all know about this—of children who had been abused not only by teachers, but by members of their family or other people in authority, and the automatic response of society at the time had been to disbelieve the children, with the result that the abuse continued in an ever wider circle. I refer to the past, but from contemporary reports we know that this still goes on. The scandal of what has happened in the Catholic Church continues to reverberate. The central essential there was the idea that secrecy was all, and so the imbalance of power between the abused and the abuser was reinforced. That is my fear about this proposal and the selection of rape as the only violent act that is afforded this kind of anonymity.

In his opening remarks, the Minister said—forgive me for paraphrasing, but I cannot remember his exact words—that it is now an accepted absolute that acts of violence against women are anathema, and that everybody in this country, this House, the criminal justice system and the police service are automatically appalled by acts of violence against women and, as a result, are immediately on the front foot, exercising all their abilities, talents and resources to track down whomsoever commits such heinous acts. We all know that that is absolute fantasy. We are witnessing at the moment one of the largest manhunts that this country has ever seen to try to track down a man who, it is alleged, has murdered one individual and shot at and injured two others. He boasted before he left prison of what he planned to do. I have no doubt that prison officials were very busy, but I am equally sure that it went into that little pocket—although it is getting bigger and bigger in my view—of something called “a domestic” in the criminal justice and police system. All it needed was for those officials in the prison to take the threats seriously, to ring the alleged perpetrator’s local police station so that the police there could take those threats seriously themselves, and perhaps the largest manhunt in British history would never have needed to take place.

There is still, as I said in an earlier intervention, a prevailing view in this country that incidents of rape, for example, are the fault of the victim—[Interruption.] Members opposite may groan and moan, but it is not so long ago— I remember it distinctly—that a judge who summed up in a rape case advised the victim of the rape that she should perhaps have worn a longer skirt. I am sure that that would never happen now, but I think that people still have similar thought processes.

[Anna Soubry]

We all agree that there should be more argument based on evidence. Where is the hon. Lady’s evidence for the assertion that people still have those views of those who make complaints of rape?

[Glenda Jackson]

I am sorry, but I did not catch the end of the hon. Lady’s question. I will give her direct evidence of a constituency case of mine, in which a woman had been systematically abused by her partner. The law acted and an injunction was laid, meaning that the perpetrator of the offences was not allowed within a certain distance of their home. What happened? His brothers took over. It is a fantasy to think that everyone in this country regards acts of violence against women as totally beyond the pale. Let us take honour killings, for instance. Does she seriously think that people who are genuinely opposed to acts of violence against women would enter into an honour killing?

--- Later in debate ---

[Glenda Jackson]

With all due respect to the hon. Gentleman, the evidence presented in the Chamber—obviously he is not the only person on the Conservative Benches obsessed with evidence-based decisions—shows that rape is exercised almost exclusively against women, so there is a gender base.

[Anna Soubry]

Some 40% of all rape complainants are either male or children, and of the 60% who are aged over 16 and female, we do not know—we do not have the statistics—how many made a complaint about something that happened to them when they were children. It is unfortunate that we do not have those statistics after 13 years of a Labour Government.

[Glenda Jackson]

We have already established that, as far as children are concerned, we are all in absolute agreement. That is why the question has been asked: why has an alleged rapist been afforded the privilege of anonymity, but someone who, for example, has been downloading child pornography has not? It has not been explained to me why rape is the act being afforded this particular privilege. I would argue that, if the Government go down this road, they will deeply undermine the concept of the unacceptability of rape and general acts of violence against women. Far too often, we hear of cases in which, for example, a woman has laid before the police the serious threats she is facing daily from an ex-partner. We then read that the police did absolutely nothing about it. We know of terrible incidents—one cannot say it is more terrible than when children are killed—in which such women and their children have then been killed by those partners. I have already given the example of honour killings.

In a recent, highly publicised case of the most heinous crimes, every report began not with “Three women were murdered”, but with “Three prostitutes were murdered”. I return to what I believe is still a central issue here, and a reason I am so opposed to the Government’s proposal: there is still the belief that attacks on women are engendered by the women themselves.

[Anna Soubry]

indicated dissent.

[Glenda Jackson]

It is no use the hon. Lady shaking her head. We both know of incidents in which people have not reported an incident of rape because they were drunk at the time, and they know that they would be castigated for it. Equally she knows that when women do come forward claiming to have been raped, the initial response in quite a wide circle is that they are making it up, which is why we have to be exceedingly careful about going down this road of putting rape in this special category that other violent crimes are not granted. If the Government were arguing that all violent and violent sexual crimes should be afforded anonymity, and if there were sufficiently wide consultation on the proposal—not just in the House, but in the country at large—I would be prepared to consider the Government’s central argument, which is that a false accusation can damage an individual’s life, their family’s life, and, in some instances, their professional life. However, I entirely agree with the point that if we go down that road, we will be undermining one of the basic concepts of our criminal justice system, which is that accusation and argument in criminal cases should take place in public. I would be extremely chary of moving away from that position, but what the Government are proposing and their lack of commitment to wide consultation cause me grave concern.

My hon. Friend the Member for Garston and Halewood, speaking from the Opposition Front Bench, made a salient point when she raised the issue of freedom of the press. That is another issue that we must consider deeply before we make any changes. However, I return to the point that I made slightly earlier, and which reinforces my contention that we are still insufficiently adamant or active and that insufficient resources are put into tackling the broader issue of acts of violence against women. I gave the example of the recent incident where three women were brutally murdered and every single news outlet began its report of the event with the words, “Three prostitutes”.

I also think that Dr Shipman would perhaps not have got away with his mass murder if his victims had been young women, as opposed to middle-aged or elderly women, because there would undoubtedly have been a desire on the part of the press—well, perhaps “desire” is an extreme word—to present the case as though these particular acts against women had a sexual undertone. In my view there is still this prevailing attitude—it might not be directly acknowledged, but it permeates so many aspects of the criminal justice system and law enforcement—when it comes to acts of violence against women, for the immediate reaction is to say, “We have to be careful about this.”

Hon. Members will know the argument about malicious accusation, but I have seen too many constituency cases and too many women and their children who have been brutalised because not enough people have taken what has been said to them sufficiently seriously, often ignoring the evidence before their eyes. The hon. Member for Gillingham and Rainham (Rehman Chishti) made a salient point in his maiden speech when he talked about the different approaches to such crimes in Europe, where there are special courts that are properly financed, with support for victims. That is a lesson that we should be learning in this country far more quickly than we are. I absolutely admit that we have made strides in that direction, but we need to make bigger strides and more of them.

--- Later in debate ---

[Anna Soubry (Broxtowe) (Con)]

May I begin by thanking the Minister, as I know he has listened to many of us who do not support all of the Government’s proposals in this matter? I know that he has made movement, too, and I am very grateful for that, and I am also sure that he will continue to listen to all that is said on this topic. I am sorry that the hon. Member for Hampstead and Kilburn (Glenda Jackson) has had to leave the Chamber, because I also want to say, with great respect to her, that I think she is living in the past.

I pay tribute to the last Government for the great strides they took in ensuring that justice was done for all those who make a complaint of either rape or sexual assault. I work as a criminal barrister—I say I work as one, because I like to think I can still do the occasional case—and I have been in practice for some 16 years. I very rarely prosecute as I have a defence practice, and I have defended many men who have been accused of rape or sexual assault. On one occasion, I defended a woman who was accused of rape. With great respect to my hon. Friend the Member for Cannock Chase (Mr Burley), this is not a gender argument—that has been identified by the hon. Member for Sheffield, Heeley (Meg Munn). We know the statistics and they are poor—we wish they were a lot better. However, as I have said in an intervention, we know that 60% of the people who make a complaint of rape are females over the age of 16, and that 40% are children—that includes males.

I echo what the hon. Lady said about young men making complaints about rape. I was involved in a case where I defended a man who was accused of the persistent and long-term buggery of a young man whom he had adopted. That young man did not make his complaint until he had run away from home—understandably. At the age of 18 he came forward to complain about this dreadful abuse, and my client was convicted. There is no way that that young man would have come forward to make his complaint if he had thought for one moment that his name would ever appear in the newspapers.

It is important that we all understand that there is no such thing as anonymity in a criminal justice system, save with one very rare exception; there are certain cases where the prosecution, with great care and after a lot of thought, applies to a learned judge that a witness in a particular case should have complete, true anonymity, so that their name is not known to the defendant or, indeed, to anybody else in the court. It is a bit of a myth that there is a long queue of women who somehow enjoy complete anonymity and can make up false allegations, knowing that their name will never be known. As all of us who have practised in the criminal justice system know, on an indictment the name of the complainant is there. It is a sad moment in court when one sits there, an indictment is put to a defendant and the name of the child is read out—the name is given as “a child under the age of 13” or “a child under the age of seven”. So there is no such thing as the anonymity of complainants.

There is also no such thing—I would hope—as the anonymity of defendants. As has been said, we are talking about a prohibition on the publication of a name. I know that I am of some age, but when I worked as a journalist many years ago the name of somebody who had been arrested was never publicised. What has happened, in reality, is that too many police officers have decided that it would be in their interests—I say no more than that—to release the name of somebody who has been arrested, especially somebody in the public eye.

I want to nail a bit of a myth that suggests that it is only the accusation of rape which casts such a terrible slur on someone’s reputation. I am not diminishing, for one moment, the appalling trauma involved, especially for young men—I am talking about those whom I have defended, who were often not the brightest or the most resourced—of often waiting for more than a year before the Crown rightly and properly decides not to proceed. We should never underestimate the trauma for those young men and their families when they are facing that charge. I believe that the hon. Member for Bermondsey and Old Southwark (Simon Hughes) said that the sentencing guidelines say that if someone has been convicted of rape and they express some remorse, they would not get a custodial sentence, but with respect, that is not right. My understanding of the sentencing guidelines is that the starting point, even on a guilty plea, is a sentence of some four to five years. It is that very knowledge that adds to the great trauma of young men, notably, who face an allegation of rape, but many other people who face other allegations are also traumatised by that and by the criminal process.

For example, I am told that two city councillors in Nottingham were arrested on charges of fraud or some other misdemeanour. The fact that they were never charged never appeared on the front page of the Nottingham Evening Post—I think it was slipped away on page 6 or in some such place. That allegation was hugely damaging to their reputation. I can think of all other sorts of examples—dentists or doctors might be accused of something and arrested, their names could be published and again their reputations would be sullied.

As so many others have said, I urge the Minister to consider with great care why he is singling out rape. I know the point is not lost on him that the accusation could be made that, for some reason, we on this side of the House do not believe in the proper prosecution of people who rape women, who rape young men and who rape children, whereas we all know that we take it seriously. I am grateful to have heard all the proposals that have been put forward by the Minister about the need to support people when they make allegations of rape.

Rape, like all criminal offences, falls into many different categories. I have touched on the fact that a significant number of the people who complain about rape are children. We also know that a significant number of the 60% of complainants who are females over 16 must be making complaints about what happened to them when they were children—that is, historic allegations of abuse. It is unfortunate that we do not have those figures; we should.

We know that there is a big difference between somebody walking along a street or a road who is attacked by a complete stranger and the other category of rape complaint, which relates to two people who are known to each other. Again, it is not as simple as it is often portrayed. They might be known to each other because they work together, so there is some sort of relationship, or because they have met in a public house and exchanged words. They might be known to each other because they have been married to each other for a considerable length of time or because they have been in some sort of relationship. They might be known to each other because they have gone out for the first time on a date and because something has occurred that has caused that woman to make a complaint of rape. It is a fiendishly complicated issue and we cannot take a broad-brush approach and say that all allegations of rape fall into the same category. They profoundly do not.

In the little time I have left, I want to touch on one issue that concerns me. Again, I know from what I am told that there is a real problem with a lack of good sound evidence. I am afraid that the Minister will have to rely on a lot of anecdotal evidence, but I have no doubt from my practice and from talking to other members of the Bar and to members of the judiciary that when a name is put into the public domain, other complainants come forward. There are many instances of it. I know from my practice that when the name of a priest who was arrested went into the local newspaper, other women came forward who had been to him and to whom he had been their minister. When they knew that others had made a complaint, they came forward. That tendency should not be underestimated.

As you will know, Mr Deputy Speaker, I have had the good fortune to be drawn in the ballot for private Members’ Bills. I know that in addressing this Chamber I must not touch too much on what I hope to say when we discuss the Bill, but I ask the Minister to consider allowing anybody who is arrested to enjoy the privilege, almost, of not having his or her name published in the press. I believe that we can do that effectively and efficiently while still allowing the prosecution to apply to a judge, depending on the particular circumstances of an offence, for the name to be published. We must allow our judges to exercise their discretion, which they usually do, when they are allowed to do their jobs, particularly well.

The last Government did a great deal to redress what was clearly the wrong balance, with women not being believed, best evidence not being gathered and so on. However, I am bound to say that I think that in some respects the balance has been tipped too far. Those of us who practise at the criminal Bar are concerned about the number of prosecutions that continue when we know that, if the allegation was not of rape or sexual assault, they would not proceed. We have to make sure that when the police investigate an allegation, they do not involve themselves. With great respect to the hon. Member for Sheffield, Heeley, it is not a question of the police officer who investigates the allegation believing the complainant. That is not their role or job.

[Meg Munn]

This is a very important point. I was saying not that the police officer had to believe the complainant, but that their initial approach when someone comes to the police station should be to adopt an attitude from the outset that that person has something relevant to say that is likely to be true. That does not mean that they should put aside all the issues of evidence.

[Anna Soubry]

I am grateful to the hon. Lady for that intervention. The correct word, which I am grateful to my hon. Friend the Member for South Swindon (Mr Buckland) for supplying, is “empathy”. I have no trouble at all with police officers who are not involved with the investigation, and all the support services, giving support to the complainant, but it is absolutely imperative that the police officer or officers involved in the case should be of the right rank. I have seen too many cases involving someone who has probably just become a police constable—other learned hon. Members are saying, “Hear, hear!”, because we barristers have had almost daily experience of this. It is also imperative that the police should apply the same standards to complainants in rape and sexual assault cases as in any other case. Some of us have been greatly disturbed by changes in policy codes that seem to suggest that there should be a different standard and test when deciding whether to prosecute in rape and sexual assault cases, because there should not be. If we do all that, there is a good chance that the rape conviction rate, although it is very good—we should get those figures sorted out; perhaps other hon. Members will enlighten us—will rise. I urge the Minister to continue consulting, and perhaps my private Member’s Bill could, with the backing of both sides of the House, be the perfect solution.

--- Later in debate ---

[Geraint Davies]

We must maximise our impact on injustice against victims and the wrongly accused. Ultimately, however, there is a trade-off, because if we push forward with anonymity, there will be more rape, more rapists and more rape victims. A few innocent people might get accused because of the culture and environment we create, but it is obvious where I stand in that trade-off.

The chief constable of Cheshire gave the example of a vicar who used to be a teacher. There was a media revelation about him being accused, and immediately eight more victims came forward, as a result of which he was convicted. We have heard about the 12 women who came forward about the black-cab driver; suddenly, after photos were published, 81 more women came forward. In the case of the paedophile running a teenage football team, publicity led to 14 more victims coming forward. Under the anonymity proposal, that would not have happened, and we would not be protecting the victims, including children.

There is a prisoner’s dilemma whereby we rely on the brave victim coming forward and encouraging other people to have the confidence to do so. With anonymity, the risk is that that person will stand alone, and that in the time between the accusation and the court case, she will be open to harassment through texting and phone calls saying, “You haven’t got a chance. You know you’re going to lose.” Then, when she does lose, other people will look at her and say, “I’m not ending up like Mary. She was harassed for ages, and now she is regarded as a liar.” Anonymity changes fundamentally the power relationship between victim and accused. The accused will realise that, it will reduce the risk to serial rapists who use drugs or alcohol to carry out their crimes, and it will increase rapist confidence.

Under the proposal, the balance could tip even further against the victim. The statistics already suggest that 0.5% of women are raped each year—about 140,000 women a year. Of those, about 100,000 do not report the rape. Why is that? Obviously, there is a systemic problem with the justice system. About 5% of women in the population—1.4 million—have been raped. Despite that horrendous figure, we are discussing measures to deter people from coming forward.

The chief constable of Cheshire gave a snapshot of statistics in the year to March 2010. He reported that 155 crimes had been recorded as rape, 33 of which were prosecuted, with 23 convictions. Nobody was found to have put forward a malicious, false accusation, although 13 cases were regarded as non-criminal. His evidence suggested that, occasionally, accusations are dismissed. I do not pretend that there are not malicious, false allegations, but there are few of them. Obviously, false allegations are serious, because when people are found to have made them they are punished by, for instance, as has been mentioned, two years in jail, which is fair enough. However, we should not change legislation because of a small number of people, when a large number of people are suffering very serious consequences, against a backdrop of a massive amount of rape. We should not rush a change through before the summer recess as has been suggested.

Women, in particular, will see the proposal in the wider context of a new Government suggesting that there should be less closed circuit television and less use of DNA, and now they are suggesting that there should be anonymity. Plus they are cutting £125 million from the police grant. When all that is put together, it does not look good to the victim, or suspected victim, of rape. To those watching this debate, I point out that 1.4 million women have been raped. Again, that is against a long-term cultural backdrop of endemic sexism in the judicial system. I see men on the Government Benches raising their eyebrows, but we have all heard about contributory negligence: “She was drunk”; “She had a short skirt on”; “He couldn’t help himself”; “He was a former boyfriend”; “And what about her sexual history?”; “What about his military career?”—all irrelevant, erroneous considerations. Consent is consent.

[Anna Soubry]

rose—

[Geraint Davies]

I consent to the intervention.

[Anna Soubry]

Does the hon. Gentleman agree that those days are long past? Raising the sexual history of a complainant is specifically prohibited, apart from in extremely rare circumstances, under section 41 of the Youth Justice and Criminal Evidence Act 1999. Does he agree that that is a long time ago? We have moved on greatly in the past 15 to 20 years.

[Geraint Davies]

No, I would not agree. I heard of a recent case where such suggestions were made about clothing and all the rest of it by the barrister in putting the defendant’s case. That is still the backdrop. We can all pretend that we do not live in the environment in which we do. The environmental context is pulled in when such cases are considered, and that is another reason why people do not want to come forward. They say, “Oh no, I was out on a Saturday night and I’d had a few drinks, so it’s an I-was-asking-for-it type of thing.”