Defendant Anonymity

Robert Buckland Excerpts

Thursday 8th July 2010 Commons Chamber

[Mr Robert Buckland (South Swindon) (Con)]

It is a great honour to make a contribution to a debate that has been singularly well informed, not only by my hon. Friend the Member for Broxtowe (Anna Soubry), who made a particularly useful contribution, but by the very powerful speech from my hon. Friend the Member for Totnes (Dr Wollaston), who has an almost unique perspective on these matters. It is a perspective slightly different from mine: I spent many years slightly further down the food chain, dealing with both the prosecution and defence of serious sexual crimes in the Crown court, including the abuse of children, rape and other offences of a sexual nature, involving both males and females.

It is perhaps inevitable that a debate about defendant anonymity has been dominated by the issue of the treatment of the victims of rape and the investigation of that very serious crime. That is not a criticism—in fact, it is a rather welcome development. It is inevitable because the focus of the proposal in the coalition document was centred on rape. That was a mistake. The points made about broadening the ambit of the anonymity question are right. Perhaps the most important point made today, however, was the one made by my hon. Friend the Member for Broxtowe: the word “anonymity” is causing us a problem. It is taking us away from the real issue, which is the coverage and reporting of such cases, an issue that has been thrown into particular relief in recent years by the power of the electronic media and the internet.

For generations, local newspapers were, with the greatest of respect to them, the chip paper of tomorrow. They were easily forgotten—trashed, buried. However, the internet is not just for Christmas; it is for life. I am sure that we have all had constituents who were the victims of false allegations years and years ago, but who are haunted by the spectre of a Google search linking their name for ever with that false allegation. I am sure that we have all had cases of people pleading for help—some of them have mental health problems as a result of what happened to them. Let us not forget that none of the proposed changes to the law will help those people, which is why the point made some time ago by the right hon. Member for Leicester East (Keith Vaz)—that this issue not only covers home affairs or justice, but is a media matter, for the Department for Culture, Media and Sport—is so important.

The more I think about the issue, the more I come to the conclusion that we should be grappling with the equally difficult—indeed, perhaps somewhat more difficult—question of the power of the internet, and how to regulate it and seek in some way to expunge the names of those innocent individuals from that awful spectre of a Google search when, for example, they apply for jobs and find that their names are for ever besmirched. That is the problem that so many innocent people have to face, and it is a problem that we need to start talking about, and seeking to address and in some way solve.

I return to where we are in this debate. Recognising the problem that I have outlined, I think that reporting restrictions should surely not be confined to rape or sexual allegations generally. There are many scandalous allegations made against individuals—they have been well discussed today, but I shall not repeat them for fear of overstepping my time allocation. However, the point has been powerfully and simply made by many colleagues in all parts of the House that to try artificially to restrict the proposal to one category of crime not only poses the kind of problems that the right hon. Member for Don Valley (Caroline Flint) identified in her powerful contribution, but risks taking us back to the naturally emotive issues that surround the crime of rape.

I should like to digress for a moment and talk in support of the many speeches that have been made today about the need for better investigation of rape crimes. Let me tell the House that my experience of the prosecution of rape is that juries always look for that extra bit of reassurance—particularly where consent is the issue—that they can often get from powerful scientific evidence. “Why scientific evidence,” one might ask, “if the issue is consent? How on earth can that be relevant?” The answer is that trials can take peculiar twists and turns. Issues that might not have seemed important to investigating officers at the outset of the investigation can suddenly loom rather large in the consideration of the jury when one goes through the evidence with a fine-toothed comb.

I will give the House a simple example. Where the act took place can often be a powerful indicator of whether consent or the lack of it can be proved. For example, if the act took place on a floor or an area that would not be consistent with consent, scientific evidence can often help to prove a case, particularly if the defendant and the complainant disagree about where the particular act of intercourse or sexual misconduct took place. I know that that might sound like arguing with the benefit of 20:20 hindsight, but the truth is this: the scene of a crime of rape should be treated as seriously as the scene of a crime of murder or any other alleged act of serious violence. Far too often, scenes of crime are not sterilised, preserved or properly protected by investigating officers, with the result that valuable sources of evidence are lost. I accept that that is a question of resources, and I know that senior police officers will have a very difficult round in the year ahead, but time and again police officers have told me that this is a problem that they face. There is no lack of will or empathy involved; there is simply a lack of resources for conducting proper investigations of rape allegations.

The attrition rate has been mentioned. That is perhaps rather an inelegant phrase to use when we are talking about such a sensitive crime, but we must not forget this. The rate will be increased if prosecutors make decisions to pursue cases that fail the test of a reasonable prospect of conviction. That should be a cast-iron test to be applied to every case, irrespective of the type of allegation. I do not say that in a cold-hearted way; I believe that such a test serves the public interest.

Let us put the questions of attrition and investigations out of our minds for the moment and return to the question of reporting restrictions. I believe that there is a case for the creation of a discretionary power for judges to impose reporting restrictions in whatever cases they see fit, subject to a simple test—namely, that of the interest of justice. That is a wide test that is applied by the judiciary up and down the land every day of our working lives. At a stroke, it would cut through all the sensitivities that have been quite properly expressed today, and all the problems that come with identifying particular professions and particular types of offence. We must trust the judiciary to do the job that they are trained to do.

In that regard, the speech made by my hon. Friend the Member for Broxtowe—I nearly called her my learned friend—was an extremely important one. She proposes discretion up to charge. I would go further and propose discretion throughout the course of the trial. That could cover a range of different allegations. It would also allow a properly informed judge, faced with an unmeritorious application from a defendant who perhaps did not deserve the protection of reporting restrictions as much as someone of good character, to make a decision based on all the information before them. That would remove the quite natural emotion that we hear in debates such as this one, and allow us to avoid the natural collision of views over the investigation of the serious crime of rape, as well as the more general issues about journalism, reporting and reputation.

For that reason, I urge the Government to think again about their current position and to widen the ambit of the measure to include a wide range of offences. Furthermore, the word “anonymity” might be relevant in the case of an undercover police officer, who can now give evidence while being protected by statute—following the problems of two or three years ago when the European Court ruled that the current common law position was inadequate—but we should stop using the word in relation to this debate. We should be talking about reporting restrictions. If we do introduce legislation on this subject, I want that term to be used. On that note, I hope that I have in some way contributed towards this excellent and well-informed debate.

--- Later in debate ---

[Geraint Davies]

That is absolutely right. We talked earlier about the problem of putting things in boxes and isolated cases. Some women go through thinking that they have contributed to the incident or even that it is somehow their fault, but if they knew that the person had a consistent pattern of behaviour in raping women, they would no longer think like that. Sometimes a woman—or a man—does not want to stand in front of a court; a difficult case might fail completely because no one else comes forward and the evidence is insufficient. In those circumstances, the victim could end up being branded as a woman—sometimes a man—who makes false accusations. They have told the truth, but on the balance of evidence available from only one witness, the accused is found not guilty, and the woman then becomes “a liar”. What signal does that send when we want to encourage more witnesses to come forward?

I appreciate that the point was made seriously, but I do not agree with my right hon. Friend the Chairman of the Home Affairs Select Committee—the point about Google raised by the hon. Member for South Swindon (Mr Buckland) was well made—that there is an equivalence between the psychological and reputational difficulties of the accused, although they certainly exist, and a lot more women being raped. There is no qualitative equivalence between them. Quantitatively, the number of malicious, false allegations is minute, whereas the number of unreported—certainly unconvicted—rapes is massive. On the balance of the argument, qualitatively and quantitatively, the case for anonymity is not made.

[Mr Buckland]

Will the hon. Gentleman give way?

[Geraint Davies]

Briefly, as I mentioned Google.

[Mr Buckland]

The hon. Gentleman is not suggesting that there is a trade-off between the effect on an innocent person and rape being undetected and victims not being served by the system, is he?

[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.