Drawing a veil over identity

Rape is a unique class of offence, says Graham White, partner in Hertfordshire firm Wheldon Campbell.

'The victim is degraded in a way which other victims are not,' he explains.

'In court, she is subjected to intimate questioning by both sides about matters of a very embarrassing nature.'That is why Mr White and most other practitioners have no time for suggestions that complainants should again be named, in the way they were until a quarter of a century ago.But the case of Neil and Christine Hamilton this summer, accused by Nadine Milroy-Sloan of sexual assault and being present during an alleged rape when they insisted vehemently they were miles away at the time - the police dropped its investigation into the pair last week - has again raised the possibility that those accused of rape should share the same protection from publicity at least until the verdict.Even in the forthcoming and unusual civil trial for rape brought against actor Steven Berkoff, represented by Alasdair Pepper of Peter Carter-Ruck & Partners, the accuser has benefited from anonymity while Mr Berkoff - who faced no criminal charges arising from the alleged attack - has had his name plastered all over the media.

There have only previously been two successful civil rape claims, despite lower standards of proof.A large part of the justification for naming defendants in rape trials is the assumption that a not guilty verdict will vindicate the accused.

But Linzi McDonald, a senior assistant at London criminal law firm Kingsley Napley, points out that the reality is not that simple.She represented David Jones, the former Southampton football manager, who was cleared of a series of charges of sexual offences while he was working with children many years ago.

He was never actually acquitted by a jury because the case collapsed with the judge ruling that the complainants were not credible.

'But although the judge made it clear that he was completely innocent, I know David Jones still feels there are people out there who are not convinced.'He said to me after the case that there was one phrase he would never use again.

He said he used to believe "there is no smoke without fire".

After this case he told me he will never say that again.'Mr White - who has both prosecuted and defended rape cases - says: 'Natural justice demands defendants should be granted anonymity as well as complainants, until such time as they may be convicted.

As far as I can see there is no public interest in denying anonymity to the accused, giving him the same protection as the victim.'But Michael Schwarz, a partner in London firm Bindman & Partners, says while he can see the argument for parity between a defendant and a complainant, he maintains: 'Different cases throw up different arguments one way or the other, so it is difficult to apply a blanket policy based on one case.'He appreciates why there is an argument for continuing to name defendants in rape proceedings.

It helps gather evidence in cases where there have been previous, unreported offences by the same defendant.

'The police would say some cases against serial sex attackers would be dropped otherwise.

Other complainants or witnesses come forward when they hear about a complaint being made.

So it's a difficult balancing act.'James Saunders, an experienced criminal defence solicitor with London firm Saunders & Co, points out that sometimes false accusers come forward in a highly publicised rape case too.Although the Director of Public Prosecutions, David Calvert-Smith QC, said earlier this year that he would not be opposed to granting anonymity to rape defendants, the Crown Prosecution Service insists it has no strong views either way, probably because there is no legislative proposal on the table.Anonymity for the alleged rape victims stemmed from a case of a gang rape in 1974, where a husband conspired with others to rape his wife.

There was an outcry when the details of the case were reported, in particular over the wife's continuing ordeal.Subsequently, both the accused and the defendant were granted the right to anonymity under the Sexual Offences (Amendment) Act 1976, but that gave rise to anomalies, such as where a man could be convicted of another serious offence as well as rape, but could not be named.

The Criminal Justice Act 1988 abolished anonymity for defendants.Mr White, a Law Society council member who takes over as chairman of the its criminal law committee this month, says he is sure that sooner or later somebody will bring to court a challenge that anonymity for one side only is unfair under the Human Rights Act 1998.

'A trial has to be fair.

That is recognised to mean fair to all parties, the accused as well as the victim.'Mr Schwarz represented Mick Hucknall, lead singer with Simply Red, who was falsely accused of rape last November, arrested, and then had all allegations dropped.He says: 'For me, the difficulty is before there is a charge.

There should be a blanket anonymity for defendants and suspects until then.

As we know, the police are less interested in the interests of the suspect than in clearing up cases with convictions.

If the police want publicity, if there is a need for witnesses, or for other complainants if it is a serial attacker, then they should have to apply to a judge to have the anonymity lifted.'The problem is that the police leak, he says.

If the media were not allowed to publish names, then leaks would not matter so much.Other areas of law surrounding rape, less in the public eye recently, cause more disquiet among solicitors, including the admissibility during a trial of an accuser's previous sexual history.The Youth Justice and Criminal Evidence Act 1999 severely limited the amount of sexual history that could be mentioned.

Earlier this year, the law lords extended the amount of the history which could be considered relevant, but still left trial judges to decide in each case.Mr Schwarz, whose firm specialises in human rights, says he is uncomfortable with the changes introduced to limit the ability of defendants in rape cases to cross-examine.'In the old days the law permitted the defendant almost to commit a second rape by the way he could cross-examine the complainant.

But now the balance has swung too far the other way,' he says.Mr Saunders agrees.

He says he is appealing a case where the fact that a woman had previously made a false rape allegation was ruled inadmissible.In the same case, the fact that she had lied in court about her sexual history was also not allowed to be mentioned in defence.

According to the Home Office, the question of how much can be admitted will join a review of all sexual offences under way after a discussion document published early this year.

The Home Office is going through the responses, and has no timetable yet for the next stage.One of the areas considered is always the definition of what constitutes consent to sexual intercourse.

At the moment, a defendant is not guilty of rape if he genuinely believed the woman had consented to sexual intercourse.

There is a slightly reluctant consensus that the existing law should continue.

The Law Society's criminal law committee, in its response to the Home Office paper, is opposed to any change.

The CPS response remains confidential until the Home Office publishes it.Mr White says he understands that it is hard for the victim, if she knows she did not consent, yet the man is acquitted.

But he, like other criminal lawyers, insists that there cannot be a conviction with consent.

'We are judging a person's actions.

If a jury has decided there was an honest belief that there had been consent, then I cannot believe it is right to find the defendant guilty,' he says.Most solicitors have a suspicion of politicians' instincts and tendency to legislate in haste on criminal law, although on rape law in contrast to some other areas of the system, there is a general approval of the Home Office's cautious progress.For all the recent furore, anonymity for defendants is not part of the review of sexual offences.

And although it is an issue which is bound to resurface, Mr Saunders is relieved there is no rush for more legislation in such a sensitive area.

He says: 'There is likely to be wisdom in laws which have stood the test of time.'Stephen Ward is a freelance journalist