Suspect Anonymity: is it actually feasible?

Former popstar and baby-boomer heart-throb Cliff Richard is suing the BBC for breach of privacy regarding its report that he had been accused of a sexual offence, and also its coverage in 2014 of the subsequent police raid on his home. The BBC coverage included use of a helicopter, and broadcasting the police search through the glass walls of Mr Richard's property. He was later exonerated from the police investigation.

Mr Richard claims the BBC improperly published his identity and footage from the police investigation. The High Court trial finished recently and judgment has been reserved.  Whether the sheer extent of the coverage infringed Mr Richard’s right to privacy is one aspect of the case.  Our Media Law Blog will report on the outcome in due course.

For criminal lawyers, this also raises the question of suspect anonymity. It has long been the law that complainants in sexual offences are granted lifelong anonymity, whether or not their allegations lead to a prosecution and regardless of the verdict. Many legal campaigners have argued that suspects should enjoy the same right whilst presumed innocent, especially given the disastrous effect publication of sexual allegations can have. Given the recent publicity about fatally flawed CPS prosecutions and failures in disclosure, the argument for suspect anonymity is now a popular bandwagon on which to leap.

However, on the question of suspect anonymity, we must ask ourselves:

1. Is there really a logical thread in favour of this change?

2. How would it actually work in practice?

Firstly, if one supports anonymity for suspects, this must apply to all suspects and not just 'celebrities'. Whilst there is a practical distinction between a suspect who was previously in the public eye, and a suspect who was not, such a distinction is impossible to recognise in law simply because the relative notoriety of any individual is always changing. There cannot be special arguments in favour of anonymity based on whether the suspect is deemed to be A List, B List, Z List or simply appeared once on 'Britain's Got Talent' with a performing pet.

So far, so simple. But this point brings up the next logical problem. Precisely which suspects should be granted anonymity? Should this right be limited to those facing sexual allegations? If so, why?

Suppose B is accused of kidnapping and falsely imprisoning a 7-year old boy. B would get no right to anonymity as the allegation is not sexual. There is also no mechanism to test the boy’s credibility, pre-trial. First of all, is it fair, fundamentally, that B would have absolutely no right to anonymity? What of the terrible effect on B's livelihood and reputation if he is 'named and shamed' whilst still presumed innocent?

Suppose the 7-year old boy old then made a further statement alleging that during his imprisonment, B also sexually touched him. Presumably, B would then immediately be granted anonymity regarding the whole police investigation, because B is now a qualifying 'sexual suspect'. Presumably, B’s name would then have to be purged from the internet, or maybe changed, in all future reports, to a anonymised initials.

Is it really a principled distinction to say suspect anonymity should be limited to sexual allegations? If not, where does one draw the line? To take a less serious example - are suspects accused by the Council of fly-tipping to be granted anonymity? What if it was fly-tipping and also a charge of assault against the Council's Officer? Does the suspect then qualify?

Is the Goose more important than the Gander?

One argument often mooted that a sexual assault suspect should have anonymity is because the complainant has it. Superficially, this sounds logical. But that approach fails to make an assessment of the relative value anonymity has to each party. Were it not for complainant anonymity, many people would not report sexual offences. There could never be a trial, let alone a fair one. On any view, justice would be denied. In contrast, the absence of suspect anonymity does not have the same terminal effect. No one seriously contends that a fair trial is rendered impossible simply because the suspect identity was published in advance of the trial, or that such a publication somehow compelled an innocent man to plead guilty. There are, of course, very serious consequences as a result of being named in advance of trial. But none of them pose an existential threat to the trial itself, or its fairness. In this way, it can be argued that anonymity is critical to the complainant, but only highly desirable to the suspect.

When would the right of anonymity cease, and publication be allowed?

The logical examination gets even more complicated when one asks: at what point could the suspect’s name be revealed? Suppose publication of the name is allowed at the point of charge/ first appearance in Court.  Would that really amount to much protection in a sexual case? After all, the defendant (as they then would be) are still presumed innocent. Those recent flawed rape prosecutions were way past this stage and either close to, or during, the trial. Innocent men like Liam Allen, Samson Makele and Isaac Itiary would still have faced a year or so of their names being published as alleged rapists, before their charges were dropped.

Alternatively, if the suspect’s name is only revealed at the point of conviction, how would this work? Open justice is highly important. Would the media be able to report the facts of the trial, as it happens, but with the names of both complainant and suspect anonymised? Would the trial still be held a public courtroom inside which journalists could sit and watch? If there is an acquittal, will the facts of the case, as well as the acquittal, all be reported but no one is ever allow to publish the name of the accused party without their agreement? How would this work? What about the names of any defence witnesses including character witnesses? Wouldn’t publishing their names rather give the game away? How far does protecting anonymity go? How many applications might the Judge have to consider regarding publishing restrictions?

Whatever proposals are made to deal with these questions, is any of this really feasible in the age of internet and social media, where anyone can publish whatever they like, from wherever in the world they like, at the touch of a handheld device?

What would suspect anonymity mean for employers and professional regulators?

Suppose the Defendant is a doctor accused of sexual assault by his ex-wife. The Defendant is granted suspect anonymity pending trial. Where does that leave the NHS Trust that employs the Defendant, or for that matter, the General Medical Council who regulates the Defendant’s conduct and is there to protect his patients and also the reputation and trust in which the public holds doctors? Must the Defendant report himself to his employer and the GMC, even though he retains the right of anonymity within the Press? Are the police still under a duty to report it to Defendant's regulator? Once the allegation is reported to Defendant's employer and a professional regulator, are they also under a legal duty not to name Defendant? Can they not publish the fact of any interim findings, dismissals or suspensions? Are they not entitled to publish reasons for having taken these steps, as would be the norm? If they are allowed to provide reasons, must it all be anonymised?

In this way, suspect anonymity may well lead to a litany of careful redactions and anonymised initials  being adopted by a variety of regulators. This wouldn't only apply to professionals - what about the suspect who is a taxi driver, a youth coach, or someone who works for the local authority?

Once again, all of this effort to respect suspect anonymity would probably be made a nonsense in the age of social media posts and internet gossip. Surely, the practical reality is that the defendant's career, and his reputation in general, would be put ‘on hold’ pending resolution of his criminal case. This unfortunate hiatus will happen with, or without, suspect anonymity being granted to him. So it begs the question of what exactly anonymity would achieve, and would all the effort to respect and enforce it be worthwhile?

Revealing prolific offenders.

There is of course also the common response from defenders of the status quo: that naming and shaming a suspect sometimes encourages other complainants to come forward who he might also have abused. In reality, this will apply in only a small number of cases (those accused of prolific sex offences, such as Jimmy Savile), but it remains an important factor. The publication of a name can sometimes help motivate witnesses to identity some of the worst offenders.

None of the above questions have definitive answers yet. But they are all worth considering when balancing whether it is wise to change the status quo on naming suspects, what problems it would actually solve, how it could practically work, and whether it would be worth all the effort.

As with all proposals aimed at controlling information, the feasibility of this idea cannot escape the all-conquering dominance of the internet. For the innocent suspect, the 'internet effect' is what makes his goal of anonymity highly attractive, but also entirely theoretical.

Click here to see how Brett Wilson LLP can assist you if you are under investigation or have been charged with sexual offences.