Towards the end of 2018, a very high-profile rape trial in Belfast concluded with verdicts of not guilty against two well known Irish rugby players. In the wake of it, a review was commissioned and undertaken to examine protections for vulnerable witnesses in the investigation and prosecution of sexual offences in Ireland and, significantly, the thorny issue of anonymity for all accused in sexual assault/rape cases. In addition, it looked at providing greater support for the complainants ( in Scotland, ‘complainers’).

Among the most significant (and some might argue controversial) recommendations of the report (chaired by a leading Senior Counsel Tom O’Malley SC) is this ‘right to anonymity’ (which currently applies to almost all accused of rape) and which, the report suggests, should be extended to those accused of ALL sexual assault offences.

This is nothing new. Other jurisdictions within the UK have been wrestling with this tendentious issue for many years. It is highly controversial and the legal fraternity itself, as well as support groups and the general public have long been split on the matter.

There are generally two main issues – firstly whether, as a matter of course, ALL those accused of ANY sexual offence should have TOTAL anonymity, principally based on the maxim that ‘one is innocent until proven guilty’ and that the stigma of such an allegation or accusation of such a heinous offence remains with an individual forever, IRRESPECTIVE of the verdict. Secondly, however, is a belief that by implementing such a protection this would not only deter victims from coming forward (in the absence of a worldwide campaign, such as #metoo,below) but also that it may be seen and interpreted as an attack on the credibility of the complainers.

The Next ICC Prosecutor Must Embody Integrity in the #MeToo Era ...

Let’s then take a look at each, in turn.

The case of JLS singer Oritse Williams highlights the issues in my first point and once again spotlights the dichotomy. Often there is a perception that, across the board and jurisdictions, ‘celebrities’ involved in cases such as these are treated differently. Williams is one of a number of ‘household names’ that have been embroiled in allegations of impropriety over the years. Certain ‘Coronation Street’ actors, Sir Cliff Richard and Paul Gambaccini to name but a few. All acquitted but the stigma surrounding their ‘behaviour’ is somewhat harder to eradicate than a mere ‘not guilty’ verdict. I have seen over the years disgraceful language aimed at them, (particularly by the cowards on social media hiding behind some nom de plume) and whereby they have been described as if they had been found guilty. Many of them to this day feel they are still seen and regarded by the public as though they hadn’t been acquitted at all – quite the reverse, in some cases. Could that be prevented by treating them ‘anonymously’, at least until a ‘guilty’ verdict is returned, should that be the case?

Contrast that with the individual acquitted of theft. It is very unlikely that they will be continually referred to as ‘that thief’ and even sometimes the press are guilty of misleading (in fact meaningless headlines such as ‘Thief Acquitted’ – there can, of course, be no such thing). So why would celebrities appear to court immeasurably harsher attitudes than ‘Joe Public’. Could it be that we see these individuals as already being in positions of privilege and that this (alleged) behaviour is simply an abuse of that? But to reach that conclusion is instantly to demonstrate prejudice and a dangerous degree of conviction based on what you hear about the alleged attack. Not evidence based. At all.

Rape is ostensibly a crime that surrounds the issue of ‘consent’. More often than not it’s not so much a case of ‘who did what’, but rather ‘what actually happed here’. The reason for this is because the vast majority of accused accept, reasonably freely, that they had sexual intercourse with the complainer but both parties have very differing views on ‘consent’. In fact the position could not be more stark. Jurors are therefore faced with the unenviable task of unravelling what they ‘think/believe‘ was going on ‘in the minds of the parties’. For a conviction to be achieved the Prosecution must prove that the victim did not consent AND that the accused KNEW that there was no consent. Up until the matter became the governance of statutory legislation by way of The Sexual Offences (Scotland) Act 2009,(below) the matter was a ‘common law’ crime here and therefore had a myriad of problems to contend with. Even a relatively cursory examination of Jamieson v HMA (1994) SLT 537 will demonstrate this point.

Sexual Offences (Scotland) Act: Brown, Dr Alastair N ...

The added difficulty , often an immeasurable and insurmountable one, is the lack of ‘forensic’ (and therefore corroborative) evidence available. Despite trashy (usually American) TV crime dramas, the victims rarely have black eyes or defensive scratch marks. Indeed medical evidence has told us often that the majority of rape victims ‘do not fight back’ ( Dr Janet Hall). Indeed largely there is no ‘evidence’ at all. Generally there are only two people present and CCTV evidence, for example, is not relevant. It is not difficult to see the problems here.

Like most rape trials, therefore, it is generally a question of the word of the complainer versus that of the attacker and whose version of events the jury believe. In the majority of cases NO other evidence is available. On that basis, therefore, is it right that an accused (and that is ALL that they are, initially) should be named and lambasted on social media before a solitary word is spoken in court? Should we simply capitulate to those who say ‘Well he looks the type’ and other such febrile comments as they have somehow managed to convict without hearing anything? It seems questionable, at best. At the very least, we believe in this country in ‘trial by our peers’ (a jury) so, surely they should be asked, ‘Who do you believe?’, having listened intently to BOTH sides carefully and any evidence that actually may be available which will assist them in forming an opinion and reaching a conclusion.

Looking at the cases of Cliff Richard and Radio DJ Paul Gambaccini it is of note, in England, that complainers of ‘sexual assaults’ are guaranteed ‘life-long anonymity’ but those that are accused are afforded none. That does seem somewhat iniquitous, even looking at it objectively. There is a growing groundswell of opinion and train of thought that at the very earliest stages of an investigation individuals should be afforded a cloak of anonymity but should they subsequently appear on petition (indicating that the Crown must feel they have fairly strong evidence) it may be ‘more acceptable’ for their identity to be revealed. My own feeling is that perhaps that ideology is based on the modern day apocalyptic advent of social media and how readily available ALL information is (even information that should not be readily available).

What of the opposing viewpoint? In Scotland in 2017/18 there were in excess of 2,200 rapes and attempted rapes reported to Police but just over 100 convictions equating to a statistic of just 4%.

Introduction to analysing data about crime using R

The reporting of rape and proceeding through what can seem like the very long dark corridor of our Criminal Justice System is no easy task. I can fully accept that – and that is from someone who was an intrinsic part of it from 1993. Advocates of why those accused should not be afforded anonymity claim that there is no reason why they should be ‘singled out’ as opposed to ‘others’ (e.g. those accused of theft, fraud, RTA offences. minor assaults et cetera) but I must confess I find that argument weak. The implications of some of these other offences are often trivial at best and sometimes non-existent but it seems to me that there will likely be few individuals accused of sexual impropriety but acquitted (or not even charged) that will EVER fully revert back to the life they knew before the allegations. Further, the mere fact that there have been several women imprisoned for falsely accusing a man of rape should serve as further caution. I have listened to the argument that naming individuals assists other frightened victims to come forward but I am sorry I find that argument far from compelling.

It is important for me to make some final points on an incredibly delicate and uncomfortable subject. Rape is an utterly abhorrent crime. The intrusion and violation of an individual’s right to ‘refuse consent at anytime’ is utterly abhorrent and we must continue (largely I suspect by education) to ensure that all young people are aware of these rights and that they must not, ever, be violated. If an individual (male or female, but overwhelmingly male) is found guilty then of course he should be shamed and pilloried for that crime but, to reveal their identity beforehand is not, in my view, appropriate.

Not an easy issue to discuss – at all.