In the wake of the Scott Mills case, the question of anonymity for those suspected of sexual offences demands renewed attention. There was indeed a time when allegations of sexual abuse were not taken seriously enough. That era was many years ago. Safeguards for complainants have expanded, and rightly so. One such is lifelong anonymity, designed to shield against stigma and encourage reporting.
What though of those accused without basis? They face a different reality: exposure, media pursuit, and a permanent digital record of allegations that may never be proven. There is no fairness if protections are weighted in favour of one side. Justice requires protection for each and all.
Allegations of sexual offending are uniquely corrosive. An acquittal may be a legal conclusion, but it does not provide a reputational reset. There have been several high-profile cases that illustrate this point. Johnny Deep was forced into costly defamation proceedings against Amber Heard before his reputation began to recover. Benjamin Mendy, though acquitted, had to litigate against Manchester City to recover lost wages. Ben Sullivan was forced from the Oxford Union never to return, without ever being charged. The damage is swift, public and often irreversible.
This is not a new debate The Sexual Offences Act 1976 gave anonymity to defendants, but this was removed by the Criminal Justice Act 1988. Parliament did partially acknowledge this issue by granting anonymity to teachers subject to allegations by pupils under S13 Education Act 2011. Yet the same risks confront doctors, social workers and police officers. The principle cannot be profession specific.
Following the failures of Operation Yewtree, Sir Cliff Richard’s case against the BBC confirmed that a suspect had a reasonable expectation of privacy at the pre-charge stage. But that is no rule of anonymity. It just requires the press to balance competing rights; an exercise not always performed with rigour. In truth, this is not a question of privacy. It is one of safeguarding.
The justification for naming suspects is that it encourages other witnesses to come forward. That aim can be achieved more proportionately. Witnesses could be drawn forth by publishing a description of the offence. In fact, it was the modus operandi of the “black cab taxi rapist” that attracted similar fact complainants rather than the publication of the identity of John Warboys. Indeed, such a policy may assist a prosecution. It is unlikely that multiple witnesses would respond to a description of the facts alleged by naming the same suspect if there were no merit to their claims. While a suspect is named, this powerful point is lost to the Crown.
There will be exceptional cases. The exposure of Jimmy Savile shows that publicity can embolden genuine victims who fear disbelief. Complainants may have responded to the facts alleged, such as sexual offences alleged against a popular children’s entertainer within the BBC building, but it might have been that only a release of his name would be enough. Savile was a public figure shielded by his heroic image. Since it was unusual, it should not be used as template for every case.
A balanced approach is within our reach. Anonymity could be the default position before conviction, with a provision for the Crown to apply to the judge to lift it where necessary, for instance, where an investigation is being impeded. When investigating complaints within a family the police can, in most circumstances, readily trace other potential witnesses without the need for the help of the media. This would mirror existing principles. Youth defendants benefit from anonymity, and courts retain the power to disapply it where it is in the public interest.
Open justice is essential, but it is not absolute. We already recognise exceptions where fairness demands it. The greater imbalance lies in the exposure of suspect to lifelong reputational harm, while the accuser retains statutory anonymity. This imbalance can, and should, be corrected.
Jo Morris
Drystone chambers
