Queen’s Counsel

There is a piece in The Times here by Felicity Gerry QC concerning the call from the retiring Judge Mowat for defendants in rape and sexual assault cases to be granted the same anonymity that is afforded to the complainant. It is under the title ‘The Thunderer’, the column that the paper uses to let non-columnists vent off about something from time to time. In this case, the title is apt. There’s a lot of wind, a lot of swirling white noise, and some rumbling nonsense.

The call came after a case of a Durham University student who had had his university career put on hold while he waited for the outcome of a rape accusation, in which the complainant’s identity was kept secret, and always will remain so. He, by contrast, was named as soon as the Police arrested him, and his photograph and name will ever be accessible by future employers and potential girlfriends.

Ms Gerry’s argument against this call seems, so far as I can tell, to go as follows (I precis her argument paragraph by paragraph, cleaning up her writing as I go):

  1. I had a client who changed his name after similar bad publicity. The accusation of rape of the student is a parent’s worst nightmare. But we mustn’t let emotions get the better of us.
  2. Anonymity is only a matter for celebrities and the privileged, and they should be subject to the rule of law as anyone else. Offending against women is rife, and they deserve protection until they can make accusations without being trolled for going to the police.
  3. The case went ahead, so there must have been something worth hearing.
  4. Any case can receive stigma on the Internet, not just rape. This student, now he is acquitted, will only be remembered for being the subject of unfounded allegations.
  5. Judicial suppression orders are not necessarily the answer, but you could sue the Police under privacy laws. ‘There should be better press standards’. It’s not fair that only the prosecution case is reported. We must reduce cruel delays in bringing the case to trial. At least the case advertises the dangers of drunken behaviour on campus.

And that’s it. Let me take this apart, and let her hope that she doesn’t ever come up against me in court.

First, if she had a client who was acquitted after eight minutes (as she said) and who had to change his name, that’s a big argument against her, isn’t it? She needs to do better than just wave it away. Best if she hadn’t brought it up. It’s not that we need examples from her personal experience to bolster the argument that being acquitted in a rape or sexual assault case is one of the most damaging things that can happen to a person.

‘The accusation of rape of a student is a parent’s worst nightmare.’ What have the parents got to do with it? Why is she focusing on student rape to discuss a general legal principle? Judge Mowat’s point wasn’t that students should have anonymity in rape cases, but that all rape suspects should have, where the complainant does. The same applies for her raising the suggestion that anonymity only applies to celebrities and the privileged. No, it should apply to all. A straw man, if ever there were one.

Offending against women is doubtless rife, and there should indeed be anonymity to protect them from Internet trolls. But no one is suggesting that this should be taken away, only that it should also be granted to the accused in addition. Another straw man. She does not discuss any particular cases in which people have been trolled for going to the police. Does this really happen? From random anonymous people, or from the person they have been accused? Hard to know how either category of people could troll without somehow implicating themselves in the crime, but Ms Gerry presumably knows best.

The fact that she perceives that because the case went ahead means that there was a case to answer is precisely the logic that does the damage, and which calls for the measure of anonymity that Judge Mowat proposes: those employers and future potential girlfriends of the young man concerned cannot possibly draw anything better than negative conclusions from the fact that he was accused. The best he can possibly hope for is that they will think ‘Oh right, he was acquitted, that’s fine.’ The overwhelming likelihood is that at least some question mark will remain over him. Smoke. Fire. Never found innocent, only ever found not guilty. Probably did it, but there wasn’t enough evidence. People of a little more sophistication will be aware that the burden and standard of proof in criminal trials means that many acquittals must be of the guilty. The jury might have suspected that they did it, but simply not have been sure to the necessary majority: that is how we load our criminal justice system, and a good thing too.

Judge Mowat speaks of the ‘unique’ stigma that attaches to sexual crimes. If women (and men, come to that) have to be protected by anonymity even to name their attackers, then clearly even being the victim of such an attack carries a stigma. No one who has been punched, glassed or knifed asks for anonymity, and neither could they be granted it. It is acknowledged that sexual crimes are very different in nature. This is the asymmetry that Ms Gerry completely fails to address. If the accuser can remain protected forever by anonymity whether or not their complaint leads to conviction, then why cannot the same apply to the acquitted defendant? The alternative, as she acknowledges at the outset, is so damaging that a change of identity is sometimes necessary to escape the cloud of suspicion.

And as for the suggestion that open justice is there to educate the public about the dangers of drunken behaviour, like some endless catalogue of cautionary tales, this is plainly bizarre. Open justice is essential, and no one is suggesting that those convicted of sexual crimes should have anywhere to hide. No one, either, is suggesting that complainants should not retain their anonymity. But for defendants to be able to nameless until they are duly found guilty is not to imperil open justice in the least.

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