Friday, May 21, 2010

Why the coalition is wrong on rape

Rather to the surprise of a few the coalition agreement published this week by the Conservatives and Lib Dems included plans to reinstate anonymity for defendants in rape cases - reported in The Guardian here.

I say reinstatement, because it has been tried before and the experience was not a happy one. Anonymity was granted to defendants in rape case by the Sexual Offences (Amendment) Act 1976, which also granted anonymity to victims in any offence which included the word rape - rape, incitement, attempted, aiding and abetting etc.

Interesting to see whether this anonymity applies only to rape or to the whole raft of sexual offences on the statute books now - grooming, voyeurism, trafficking etc.

Anonymity for defendants was brought to an end by the Criminal Justice Act 1988 for many of the reasons cited by those opposing this latest move. Namely that many sex offenders are repeat offenders and that seeing a defendant charged encourages other victims to come forward.

While I agree with those arguments, my concern is for the wider principle of open justice. Once you allow special pleading, ie, that a defendants life will be ruined by the mere accusation of the offence, then you set a dangerous precedent. if we accept that certain crimes are particularlay damaging to a defendant by their very nature, the you open the door to many other defendants trying a similar argument.

An accountant accused of fraud might argue that an accusation of fraud was specially ruinous; a teacher accused of hitting a pupil would say such a charge would be career-ending. Once you accept the argument that certain offences are especially damaging then you accept a principle which threatens open justice.

News organisations are already withdrawing from the courts, once a staple source of news. Putting another obstacle in the way of open reporting of the courts is a mistake.


Alwyn ap Huw said...

Accepting your point about special pleading in rape cases, wouldn't the proper position for a judicial system that is based on the principal of "assumed innocent until proven guilty" be that the accused shouldn't be named until guilt is proved in all cases?
I allso accept your point that it would be bad for News Organisations, but shouldn't our judicial system put justice before selling newspapers?

Banksy said...

Secret justice is no justice at all. It is one of the fundamental principles of our judicial system that it is open, and that includes defendants named.

It might also sell newspapers, although few and fewer cover courts now, but the principle is one that we do not run our courts in secret.