Ronan Pandit | Thursday 15 September 2016 | GMT 16:00 | email@example.com | @RonanPandit
In our current system of justice, ‘Innocent until proven guilty’ is no longer the mantra that we as a society abide by when following legal proceedings. Rather, we have turned around this historical saying and now sing from the hymn of ‘Guilty until proven innocent’. The accused are now becoming victims of the Law. This issue most notably applies to victims of false rape allegations.
Those falsely accused of rape continue to carry a stigma that exists within the media and within their community – even after acquittal. And while the accuser remains anonymous and is perceived as the “victim”, the suspect has to deal with the damaging perception that is placed upon them by society. Labour peer Lord Corbett told the Evening Standard in 2002 that:
“Rape is a uniquely serious offence and acquittal is not enough to clear a man in the eyes of his family, community or workplace. He is left with this indelible stain on his reputation.”
This concern is one that affects many men, and can be so damaging to the extent that the accused struggle to escape the condemnation from their friends and family. So true was this the case for Jay Cheshire who took his own life in July 2015 after struggling to cope with false rape accusations. Despite the fact that justice was clearly served through the acquittal of Jay Cheshire, can the lack of his anonymity serve as evidence of a legal system that is fair?
This highlights a key failure of the judicial system: while being successful in the result, the system fails significantly in protecting the victim from false allegations – which could be easily fixed with reforms that would preserve the anonymity of the accused until proven guilty and charged. Not only would this uphold the integrity of the legal system, but also more importantly, it would mean that the fate of the accused would be dealt with by professional judges and not by ordinary people who have a disposition to see defendants as guilty.
However, although I am not suggesting that anonymity of the victim is not essential (because it is), it is evident that there is a need to protect both the victim and accused, whether or not the accused is guilty. Protection of the victim (when the victim is a child) is clearly expressed through the Children and Young Persons Act 1933. Section 39 of the 1933 Act provides that:
(1) “In relation to any proceedings in any court . . . the court may direct that—
(a) No newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person or in respect of whom the proceedings are taken, or as being a witness therein:
(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
Except in so far (if at all) as may be permitted by the direction of the court.”
Despite this, the identity of the defendant is not legally protected, and has been the source of important battles between the media and the courts on whether it is possible to report the identity of the suspect. This is a problem that affects not only the victims of miscarriages of justice, but also victims of genuine rape offences, as the publication of information of the suspects has the potential to reveal the identity of the victim.
In a case in the Court of Appeal of Gazette Media Company Ltd v Teesside Crown Court, where the Court had to rule on the legitimacy of Section 39 of the Children and Young Persons Act 1933, the Court of Appeal believed that the naming of the defendant is fundamental, as the context in which the charges are conveyed can lead to the publication of the identity of the victim. The Court reasoned as such:
“If the offender is named and the victim is described as ‘an 11 year-old schoolgirl’ in circumstances in which the offender has an 11 year-old daughter, it is at least arguable that the composite picture presented embraces ‘particulars calculated to lead to the identification’ of the victim.”
So, if the press revealed that the defendant had conspired to rape and was found with indecent photos of children, and revealed that they had an 11 year-old daughter (as was the context of this case), surely this could have led to the identification of the victim? The simplest and most useful conclusion to this would be to ensure the anonymity of both victim and defendant, so that both victims of false allegations, and victims of legitimate rape cases are adequately protected from future victimisation, and so that the judicial system remains fair to all those involved in it.
The lack of anonymity of the defendant embodies all that is inadequate in our system of justice – a system that treats its suspects as unequal, and labels them as guilty, even before a judgement is made. While I recognise the importance of encouraging genuine rape victims to come forward, I do not consider the release of defendants’ names in the press as a legitimate way of improving this problem. As a society, we have an obligation to treat and protect everyone under the law equally, and we need to uphold this value so that the English legal system continues to be seen as fair.