Confidentiality and sex cases

At the Conservative Party Conference, justice secretary Chris Grayling raised the prospect of reforming the usual police practice of naming suspects in sex offences investigations at the time of arrest.

This is an area that is ripe for review, though there is a tension between the principles underlying such reform (asserting the individual’s right to privacy) and the value placed by police and prosecutors on publicity as a valid investigative tactic.

The proposal – tentative at this stage – arises from a number of cases of well-known individuals (for example, Jim Davidson and Freddie Starr), arrested on suspicion of committing historic sex offences and exposed to the full glare of media attention only for lengthy investigations to conclude with no charges being laid. It is hard to overstate the reputational damage inflicted by the significant publicity that such allegations attract. Even in cases where the accused is not in the public eye, the effects can be devastating – more so in the age of instant and universally accessible coverage.

For sound reasons, complainants in sex cases are entitled to anonymity during and after any investigation and prosecution. The question of suspects being afforded the same protection is not novel: the Sexual Offences (Amendment) Act 1976 provided anonymity to those accused of rape up to the point of conviction, precisely to protect the reputations of those eventually acquitted.

The protection was shortlived, however, and it was successfully argued during the passage of the Criminal Justice Act 1988 that no distinction should be drawn between defendants in sex cases and those facing non-sexual allegations. In 2003, reintroduction of defendant anonymity was recommended by the Home Affairs Select Committee, but not adopted.

Sex cases generally – and historic allegations in particular – are characterised by an absence of corroborating evidence, or indeed any evidence other than the complainant’s account. Those under scrutiny may be unable to provide compelling alibis for occasions dating back decades, and the Crown Prosecution Service is under significant political pressure (both internal and external) to proactively prosecute allegations of sexual offences.

One argument against anonymity, advanced by the police and the CPS, asserts that publicity is a vital tool in raising awareness of what might be serial offending and in encouraging other complainants to come forward. Critics of this ‘shaking-the-tree’ approach emphasise the risk that several false or weak allegations might be used to bolster each other. Indeed, it may be tempting for investigators to adopt such an approach precisely to achieve this end.

Why limit anonymity of the accused to sex cases alone? Two reasons. First, sex cases invariably attract an unusual level of publicity (often salacious and prurient) and so the extent of reputational damage suffered by those investigated is arguably unique.

Second, one can think of a number of rehabilitated high-profile offenders whose convictions concerned dishonesty (Jonathan Aitken, Jeffrey Archer and Chris Huhne to name but a few), but a different degree of moral opprobrium attaches to sexual misconduct and so the possibility of rehabilitation is much reduced, even where there is no conviction. The temptation to conclude that there is ‘no smoke without fire’ is that much greater when allegations arise from almost invariably private conduct.

Pressure to preserve suspects’ anonymity can be viewed alongside the development of the ‘right to be forgotten’ as a reaction to the reach and permanence of online news, and against a background of ever-increasing public concern about the impact of the internet on personal privacy.

There is clearly a balancing exercise to be conducted between a suspect’s right to privacy and the need to investigate serious crime rigorously, but a move towards protecting reputations and recognising the pitfalls of certain investigatory practices is broadly to be welcomed.

Edmund Smyth is a criminal solicitor at Kingsley Napley