Policing and Crime Bill

Lord Campbell-Savours Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

Sexual offences can be of a nature where allegations are easy to make, where there is no corroborative evidence and where the consequences for those falsely accused can be devastating. It is time we seriously considered this amendment. I beg to move.

[Lord Campbell-Savours (Lab)]

My Lords, the House is indebted to the noble Lord, Lord Paddick, who has huge experience in this area. I open my remarks by telling a true story. A woman rifles through the dustbin of a reputable consultant, finds a used condom, smears the contents on herself and makes a false allegation of rape. Because the accused has no right to anonymity, he is suspended as a consultant psychiatrist, hauled before the GMC, shunned by his friends, attacked on the internet, loses £100,000, part of which was income, and is then discredited in his own community. Should we not be looking at the law on anonymity for men, as there are many cases of reputations that have been destroyed where prosecutions have been dropped?

I have raised this issue on many occasions over the last 15 years of my membership of this House. To be frank, I got absolutely nowhere. The problem is not in this House, but in the Commons. There are women in the Commons who feel strongly that transparency in the legal and investigatory processes helps to secure a high rate of successful prosecutions. I understand all that. The facts as the law stands speak for themselves: a 31% increase in recorded rapes in 2015 alone; gross underreporting of the crime; one in five women under 60 reporting sexual violence; abuse in the process, as in the recent Evans case; and the disturbing trend—I understand, although I am not a lawyer—of jury vilification, where juries return a verdict of not guilty despite a belief that the defendant is guilty of the violation. The jury, in effect, is nullifying a law it believes is immoral or wrongly applied to the defendant whose fate it is charged with deciding. Finally, there is a low rate of successful prosecutions. That is the background; it is the tension in the Commons that leads to opposition to the change of the law in this area.

These concerns and more stand at the heart of the anonymity debate. Women want early identification so as to counteract their concerns. As Maria Eagle put it in the Commons:

“Rape is often a serial crime and it is often only after many crimes that a perpetrator is brought to court. Previous victims often come forward at that point. That can be essential to the securing of a conviction”.—[Official Report, Commons, 8/7/10; col. 567.]

That is the case in defence of the present arrangements.

There is, however, an appalling price to pay for the denial of anonymity. Lives are being destroyed. The new drivers behind the argument for reform are those whose lives have been ruined by pre-charge publicity: Cliff Richard, Paul Gambaccini and Leon Brittan—as we mentioned—and the many others who have written to me over the years detailing what has happened in their lives. It has meant the loss of livelihood, the loss of friendships, marriages collapsed and families destroyed by the unjustifiable publicity. Even when their names are cleared, they take to their graves an element of residual public prejudice and suspicion. The benefits of transparency have to be carefully weighed against the destruction of people’s lives, which on occasions has even led to suicide. There has to be reform.

We are then told by those who oppose anonymity that you cannot single out the crime of rape from other offences pre-charge. Again, as Maria Eagle put it in the House of Commons:

“In fact, people accused of sexual crimes should not be treated any differently from other defendants. If the Under-Secretary”—

who was across the Dispatch Box at the time—

“singles out rape from all other sexual offences … That will impinge on victims’ capacity to come forward … which will in turn impinge on the conviction rate”.—[Official Report, Commons, 8/7/10; col. 567.]

I cannot, however, understand how singling out rape pre-charge deters reporting by victims when, once a person is charged, goes to court and is placed on public trial, the world is made aware of the nature of the crime that they are alleged to have committed. In a particular case, a man is not tried for previous rapes, as I understand it, but only the rape or rapes that is or are the subject of the prosecution. Surely if, during a trial, further rape cases come to light, and if the evidence is there, further prosecutions can be brought.

We are then told that police guidelines protect the accused prior to charge from adverse humiliating publicity. However, as Mr Blunt, the Minister, said at the Dispatch Box in the other House on behalf of the Government in July 2010:

“It appears to be widely assumed that there is a self-regulation scheme in place that clearly prohibits the reporting of anybody accused of a crime but not yet charged with it. On close examination, however, the 2004 interpretative note does not provide complete reassurance. Nowhere does it contain an outright general prohibition on the reporting of pre-charge allegations. In fact, in the main, no mention is made of the distinction between pre and post-charge reporting at all”.—[Official Report, Commons, 8/7/10; col. 557.]

That is the point that the noble Lord, Lord Paddick, so forcefully put in his contribution. In other words, there is potentially no redress for those accused who are innocent.

--- Later in debate ---

[Lord Campbell-Savours]

Surely they can come forward during the course of the trial.

[Lord Pannick]

The problem is that they come forward during the course of the trial only if there is one. By reason of the publicity, they are encouraged to come forward and present evidence that helps to persuade the prosecuting authorities that the matter should proceed to a trial. That is the difficulty. The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed. That is the first problem.

The second problem is that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. There are cases in which publicity has been sought by the person wrongly accused and this helps to exonerate that person. I appreciate that this amendment would allow the person accused to seek permission from the judge to publicise the matter in the public interest. But if I am wrongly accused of a sexual offence, I should not need to persuade a judge that it is in the public interest for me to be able to publicise the fact. I am entitled to publicise the matter because it is in my interests.

The third problem is common to restrictions on open justice. You can prevent publication of the name of the person concerned, but you cannot prevent people in the know from gossiping. The consequence is that a larger group of people know the name of the person concerned. Those who do not know inevitably speculate. This amendment or any variation of it would not prevent the press from publicising—and they would—that a famous footballer, a well-known pop star or a senior politician has been accused of a sexual offence. It would not prevent the press from publicising details as long as this does not identify the specific politician, pop star or footballer concerned.

[Lord Pannick]

No. They would not know who the individual was. This of course is very unfair on famous footballers, well-known pop stars and senior politicians who are not the subject of the accusation. Can they issue a press release to say that they are not the person concerned? That is the third problem.

The fourth problem is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not it is the police making the accusation. It seems to suggest that any accusation of a sexual offence would prevent publicity, but how far does this go?

Fifthly, the amendment fails adequately to address when the prohibition on publicity comes to an end. As drafted, the prohibition on publicity ends when the person concerned is charged with an offence. But let us suppose that the police decide not to bring charges and the person concerned is exonerated. Under this amendment, it seems that no publicity is allowed even at that stage—the person concerned cannot tell the world that he has been vindicated and the press still cannot report that a false allegation has been made.

[Lord Campbell-Savours]

The noble Lord has listed a number of objections. He is an eminent lawyer. How would he solve the problem in a way that enables people to protect their reputations when they are innocent?

[Lord Pannick]

The way that people protect their reputations is that we all have to emphasise the importance of the presumption of innocence. It is quite wrong that people such as the doctor to whom the noble Lord referred are subjected to serious detriment simply because an allegation has been made. That is the basis of English law: you are innocent until you are convicted. That is the principle and I do not accept that the nature of the problem justifies an amendment of this sort, which would lead to all the problems I have sought to identify.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who have spoken in the debate. The variety of views on this subject speak to me of just how difficult an issue it is. I also particularly thank the noble Baroness, Lady Brinton, the only woman apart from myself to speak in the debate. This is a very sensitive issue, and many noble Lords have talked about getting the balance right. We think that the Government have got the balance right, and I will explain why.

I shall start with the report by Richard Henriques on the Metropolitan Police Service’s handing of its investigations into allegations of sexual offences by persons of public prominence. That is a further element contributing to the debate. In answer to the point made by my noble friend Lord Attlee, I have been fully briefed on that report. It was commissioned by the Commissioner of the Metropolitan Police, and as I said to this House the other day, the report—including its publication—is a matter for him and for the force. The commissioner has made a public apology to Lord Bramall, to Lady Brittan and to Harvey Proctor for the impact that Operation Midland had on their lives.

At the outset, let me say that the Government fully understand the anguish felt by those who have had their reputation traduced in the media following unfounded allegations made against them. The notion that someone is innocent until proven guilty is central to our justice system and to the rule of law, so the Government have every sympathy for the underlying aim behind the amendment. I will not go into what should be redrafted, but will talk about the amendment as it stands.

The Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge. I believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means that a suspect should be named. If there is a divide between noble Lords and myself on this issue, it is not therefore one of principle but is about how best to give effect to the shared policy position. For the Government’s part, we are not persuaded that legislation is the right way forward at this time.

One of the principal arguments put forward in support of retaining the public interest exception is that, as the noble Lord, Lord Pannick, said, there will be circumstances in which the police need to publicise a person’s identity to allow further witnesses to a known offence to come forward, or further unknown offences by the same person to come to light. As he also said, witnesses can come forward at a trial only if there is, in fact, a trial. He also made the further point that the accused could themselves create their own publicity around an event.

As the current Prime Minister said in response to the previous Home Affairs Select Committee on this issue,

“While we are clear that transparency and consistency should be at the heart of the criminal justice system, … we recognise that there is a difficult balance to strike in some criminal investigations between the operational advantages of naming suspects and respecting suspects’ right to privacy”.

As noble Lords will know, the issue of anonymity in relation to sexual offences has been debated in this House over many years. Anonymity for complainants in rape cases was introduced in 1976. It was subsequently extended to sexual offences generally. Anonymity for defendants who have been charged with an offence was introduced at the same time, but abolished in 1988. Defendant anonymity was subject to exhaustive consideration before and during the passage of the Sexual Offences Act 2003.

As the noble Lord, Lord Rosser, said, in 2010 the then coalition Government published independent research relevant to defendant anonymity in rape cases, which found,

“insufficient reliable empirical evidence on which to base an informed decision on the value of providing anonymity to rape defendants. Evidence is lacking in a number of key areas, in particular, whether the inability to publicise a person’s identity will prevent further witnesses to a known offence from coming forward, or further unknown offences by the same person from coming to light”.—[Official Report, Commons, 12/11/10; col. 27WS].

The coalition Government declined to proceed with introducing defendant anonymity in rape cases unless the evidence justifying it was “clear and sound”. In the absence of any finding to that effect, they reached the conclusion that the proposal did not stand on its merits and would not be proceeded with further.

While the amendment before us would confer anonymity on suspects rather than defendants, I note the preceding history to highlight the challenges we face in coming to an equitable view on this sensitive issue. There are powerful arguments against conferring anonymity on either suspects or defendants of sexual offences simply as a quid pro quo for that enjoyed by complainants. However, I also recognise that those whose identity is made public, be they persons of public prominence or not, may suffer unjustifiable reputational damage. Noble Lords have given many examples of those individuals. While we may personally empathise in individual cases, this should not blind us to the bigger picture and the very significant reasons that underpin the current regime.

As I have said, it is a fundamental tenet of our justice system that everyone is innocent until proven guilty. There must never be an assumption that being charged or arrested for an offence indicates that a person is guilty of a crime. Introducing a statutory scheme for pre-charge anonymity for sexual offences could be seen to undermine that principle. Indeed, while it is true that a suspect who is not further proceeded against in respect of a sexual offence may nevertheless suffer reputational damage, the same may be true of any other serious offence, such as murder, theft or fraud, as noble Lords have said. As with these other offences, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect.

The police are guided in making such decisions by the College of Policing’s authorised professional practice material Guidance on Relationships with the Media. The current guidance makes clear that decisions should be made only on a case-by-case basis and the police should not release the names of those who are arrested or suspected of a crime unless there are clearly identified circumstances to justify it. These would include incidences, for example, where there is a threat to life or to assist the police in the detection or prevention of crime.

The College of Policing is currently developing new authorised professional practice on media relations and has recently undertaken a consultation as part of its development. The consultation closed in July and the college expects to publish its response to the consultation in the new year. It would not be right, therefore, for the Government to pre-empt the outcome and we will await the conclusion of the college’s review. However, the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is vital that the police are able to exercise their own judgment and act swiftly in the circumstances where releasing the name of a suspect may prevent further harm, for example.

I must emphasise that public reporting of a suspect’s name is unusual, but in certain circumstances the police authorise release so that any other potential victims of a suspect are encouraged to come forward. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered sexual abuse—as the noble Lord, Lord Rosser, rightly articulated—and this might encourage them to overcome their reluctance to come forward. Victims must feel that they are able to come forward and report abuse to the police as well as get the support that they need. We have seen recently an increase in the number of offences recorded. That is thought to be the result of increased willingness to report among victims and action taken by police forces to improve their approach to investigating sexual abuse. As the noble Lord, Lord Rosser, said, convictions for this offence are still woefully low.

In March this year, the chief executive of the College of Policing, Alex Marshall, wrote to all chief officers and PCCs following a number of high-profile cases concerning non-recent child abuse which had focused public attention on the police approach to victims, both at the point of reporting and in investigating the crime. Mr Marshall’s letter put on record that:

“In cases involving sexual offences, substantial efforts have been made to improve the confidence of victims to come forward and report crimes to the police. It is important that progress is not lost”.

I cannot emphasise this point enough. We must not undermine victims’ confidence in our response to sexual offences. Agreeing this amendment could send a message to sexual offence victims that they are less likely to be believed than victims of any other crime. This would be an undeniably retrograde step.

As has been highlighted in the debate we have had today, there are two issues in relation to this matter. The first is the right of the police to name individuals and the second relates to cases in the media where those being investigated, but who have not been charged, have been named. A number of these cases highlighted in the media have been as a result of information being provided not by the police but from other sources. The guidance from the college to the police does not interfere with the rights of the media to publish information obtained from another source, for example, where such information is provided by a victim of crime or a witness to the crime. The press is self-regulated and develops its own codes of practice. Any reporting which breaches an individual’s right to privacy would need to be demonstrably in the public interest. The Government are committed to an independent press, free from government interference. The majority of the press are members of the Independent Press Standards Organisation and are held to account via the Editors’ Code of Practice. The code stipulates:

“Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications”.

As noble Lords will be aware, we already have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly—

[Lord Campbell-Savours]

May I ask the Minister a simple question? She used the phrase,

“demonstrably in the public interest”.

What was demonstrably in the public interest in the naming of Sir Cliff Richard for an offence he did not commit, and Leon Brittan, Ted Heath and Paul Gambaccini? What was demonstrably in the public interest in those cases?

[Baroness Williams of Trafford]

My Lords, I will not talk about individual cases, and noble Lords would not expect me to do so. I am talking about the code of practice for the press. I have also just talked about the guidance from the College of Policing. We are committed to an independent press. Noble Lords will already be aware that we have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly by the media and others. This includes resolution through the courts.

In conclusion, and for the reasons I have outlined, I am satisfied that there is an operational need for the police to be able to determine whether to name an individual ahead of charge and that adequate provisions already exist in current legislation and practice to safeguard those accused of a crime without the need for legislating for pre-charge anonymity. I hope that at the end of this rather long debate the noble Lord will feel able to withdraw his amendment.