Anonymity for defendants: a history since 1976

By Robert Whiston FRSA  Jan 1st 2011 

Political defeats can have either a far reaching permanent effect – either the subject is effectively dead and buried – or it will prove to be a rallying point for another assault. 

The defeat recently inflicted on the coalition (Nov 2010), regarding anonymity for rape defendants is merely, one has to hope, a setback and will  provide a trigger for a resurrection in the future. 

Anonymity for defendants in rape cases is, however, not a new or untested concept. The rules governing such anonymity altered in 1976 and again in 1988.

However, the imperative has never been more urgent. In recent years around 10,000 men have annually been arrested or questioned by police about alleged rapes (Table 1). Translated that means that more than 27 men per day will have been lifted by a police raid on their homes. Many will have had their DNA taken and placed permanently on the UK’s national database, primed ready to convict them (and their offspring) for any minor infraction in the future.

Table 1 is not definitive. For instance, it does not include cases where no suspect is found and it has to battle with the confusion caused by changes in year end dates (see footnote in table above). It does, however, capture in gross terms the magnitude of the problem. The number of rapes discarded or that fail by the wayside shown in Table 1 , represnt the approximate number of men taken in for questioning, traumatised and then released.

It was the ‘Sexual Offences (Amendment) Act 1976’, which first introduced anonymity for complainants. Since then it has been extended to other sex offences, which begs the question why is the accused not excused publicity ?

The question of equality before the law for the two sexes has a long pedigree. In a House of Commons debate, 30 March 1999, Mr. Crispin Blunt MP (who sponsored the 2010 initiative), posed this problem: [1]

 “. . . . There is injustice when the principle of innocent until proven guilty is in effect overturned by publicity. There is a general principle of open, transparent justice, but when the sensational handling of cases has the effect of undermining justice, the requirement for open justice must be balanced by the requirement for justice itself. Victims of sexual offences are already accorded that protection.”

In fact, the ‘Sexual Offences (Amendment) Act 1976’  did not originally provide privacy (anonymity) for those accused of rape (defendants). This was apparently a parliamentary addition for the purpose of providing equality between a complainant and a defendant, and to protect potentially innocent defendants from the stigma of being accused of so heinous a crime. Defendants in rape cases were, in this manner, given anonymity from 1976 onwards.

A Parliamentary ‘briefing paper’ (Standard Note: SN/HA/4746) sets out the main principles of how it came about and the long debate about why it should be abolished.[2]

The rationale for granting anonymity (but only to complainants) was set out in 1975 by a committee reviewing the law of rape is as relevant today and rewards on closer examination:

“. . . . public knowledge of the indignity which [the complainant] has suffered in being raped may be extremely distressing and even positively harmful, and the risk of such public knowledge can operate as a severe deterrent to bringing proceedings. . . . . . The balance of argument seems to us to be in favour of anonymity for the complainant other than in quite exceptional circumstances.”

“While fully appreciating that rape complaints may be unfounded, indeed that the complainant may be malicious or a false witness, we think that the greater public interest lies in not having publicity for the complainant. Nor is it generally the case that the humiliation is anything like as severe in other criminal trials: a reprehensible feature of trials of rape . . . .  is that the complainant’s prior sexual history . . . . . . may be brought out in the trial in a way which is rarely so in other criminal trials.”

If ‘the humiliation’ is nowhere near as severe as it is in rape cases then that humiliation applies to both an innocent woman sexually raped and an innocent man metaphorically raped by the media and judicial system. 

Public Interest

It was accepted in 1975 that a rape complaint may be unfounded, indeed, that the complainant may be malicious or a false witness. Nevertheless, the committee believed the greater public interest, lay in not having the complainant face the ordeal of publicity and its attendant intrusiveness.

What, one has to ask, was this public interest ? Did it serve justice or the requirements of equality ? Or was it an instance where knowledge of the complainant and her identity served no useful purpose other than intrusive tabloid titillation ?

Given the rising level of openness and promiscuity among all layers in society at the time, exposing a complainant’s prior sexual history would make irresistible reading to a general public that still believed itself to have high morals. That self-delusion, however, has by now passed (2010) with the explosion of voyeuristic and reality TV programming.

Criminal Law Revision Committee  (1984)

The ‘Sexual Offences (Amendment) Act 1976’ has allowed people (mainly women) who claim to be the victims of certain sexual offences, including rape, to have automatic and lifelong anonymity once their complaint has been made.

Between 1976 and 1988 the same anonymity was extended to those accused of rape. However, in 1984, the Criminal Law Revision Committee reported on the issue and concluded that there was no reason to distinguish rape defendants from defendants of other crimes and that the argument about equality between the parties was not a valid one “despite its superficial attractiveness.”

The provisions in the 1976 Act for a defendant’s anonymity were thus repealed in 1988. Currently, therefore, all defendants in sex offence cases, from 1988 to the present day (2011), do not have any specific entitlement to anonymity.

Heilbron Report 1975

Most commentaries, including those reported in Hansard, refer to the Heilbron Report as sanctioning anonymity for both rape complainants and defendant but this may not be entirely true. The Heilbron Report might be credited for the change but the simple reason may be that Parliament was seeking equality between the sexes by accepting the Heilbron recommendations and then extending anonymity to the accused.

That is the view of no lesser person than Vera Baird QC who was Solicitor General from 2007- 2010 and a former MP (2001-2010), writing in the Guardian (what else ?) on Aug 11th 2010. [3]

Left: Vera Baird in relaxed and cuddly mode

In an article praising Heilbron as a fellow-female ‘trailblazer’, radical feminist Baird writes that:

“As long ago as 1975, Mrs. Justice Rose Heilbron’s rape law report recommended that complainants be given anonymity to encourage them to come forward, but that there was no case, contrary to recent government arguments, for defendants to be granted the same protection.”

The ‘step on your toes’ style of Vera Baird may well prove to be factually correct, this time around, but it has to be said that in one Whitehall committee where she was chairman she made no fewer than 5 factually inaccurate assertions in her opening address to us (all of which I felt compelled to publicly point out to her).[4] For  more on Vera Baird see “Gender Equality Scheme in Britain (GES)”

What is certain is that it was in 1975 that Mrs. Justice Heilbron was asked to look into the question of rape anonymity and by 1976 had compiled her recommendations in the Heilbron Report (The Heilbron Committee, Report of the ‘Advisory Group on the Law of Rape’ 1975. Cmnd 6352).  What is less certain is why such a report was initiated in the first place.

Her recommendations also included restrictions, including cross-examination by the defence. 

Appointed by Home Secretary Roy Jenkins, Rose Heilbron career had a comparatively rapid rise. Called to the bar in 1939 she was apparently aided by the fact that so many men were away in the armed forces during World War II. In 1946 she won her first acquittal, aged 29. Heilbron appeared in 10 murder trials and in the late 1940s and early 1950s she appeared for housewives and gangsters charged with murder, e.g. Vicky Wright and Merseyside gangster George Kelly (see also Appendix A). 

Incest anonymity 

Curiously the rarer the offence and the more obtuse the infraction the more likely it is that a defendants’ identity will be hidden. ‘Jigsaw identifications’ is the term give to situations where the making known of the defendant’s identity will reveal by deduction, the rape victim’s name. Examples of this are incest between siblings, or child-parent incest and rape of a spouse. A significantly large number of incest/rape cases are between half-siblings, i.e. where two families are “re-blended” (see Sexual Offences (Amendment) Act 1992). Very few incest/rape cases relate to children and biological fathers. [5] 

Cases of child abuse – as opposed to paedophilia – frequently do not identify the accused yet no one suggests that justice is somehow compromised. One is forced to conclude that double standards not only apply in this subject area but that double standards are positively encouraged for purely political agenda purposes.

Erosion of ‘due process’

Observing the niceties, the proprieties and a woman’s good name made the outlawing of examining a woman’s prior sexual history an easy accomplishment for those gallant men in the House of Commons, e.g.: “ . . . keep the victim’s identity secret so that society can attempt to protect and cosset her.” [6]

This was long before the changes made to limit the right of cross-examination and the elimination, circa 1991, of the need for ‘corroborating’ evidence.

Seen with the benefit of 30 years of hindsight, the erosion of the defendant’s right to ‘due process’ and the loading of the dice, is all too plain to see (see Appendix B, and Morgan Case).

Campaigners against anonymity for defendants appear to operate in a pre-DNA world. It is assumed by the general public (and vocal politicians) that DNA will prove ‘guilt’ – but this is wrong. DNA is based on ‘probabilities’ and the most certain thing one can conclude about the role of DNA is that it has the power to exonerate, i.e. rule someone out of the picture.

It is perhaps a shock to realise that DNA is less reliable than fingerprints for many reasons (some of these reasons are laid out in “DNA Doppelganger Dilemma” (http://www.mensaid.com/documents/dna_doppelganger.pdf and http://robertwhiston.wordpress.com/2008/02/29/6/). Depite this ability to reliably prove a negative the Home Office has no plans to introduce even in the distant future a scheme to vindicate those already  incarcerated for rape.

The 1988 debate

John Patten MP (Conservative), was one of the lead ministers in 1988 when amendments to anonymity were again raised. Anonymity for rape victims was widely supported in parliament but those seeking anonymity for defendants, i.e. Mr. Robin Corbett MP (Labour), found a new set of opponents ranged against them.

It was accepted then – as it is today – that: [7]

“Rape is but one of many offences where a defendant who is acquitted may nevertheless suffer damage to his reputation.”

Arguments used 22 years ago against anonymity for defendants sound very much the same as those rolled out in 2010.

Having accepted that granting anonymity in a legal case runs counter to natural justice, the anti-reformers set aside the corrupting influence of the precedence set by granting anonymity for complainants as a trifling matter. The question then becomes why a defendant should be granted anonymity when anonymity is not granted in any other criminal case (or as we have seen in jigsaw and incest cases (above) is usually not granted).

The key question posed mischievously by John Patten MP was; ‘Why should suspected rapists but not other suspected criminals enjoy anonymity ?’

The proper retort should have been; ‘Why should those claiming to have been raped enjoy anonymity – and life long anonymity at that, even when the claims are shown to be bogus ?’

The answer to both is the level of intrusive media coverage that both the victim and the accused would otherwise have to endure. As a ‘serious subject’, it has to be said, that in 1988 rape was not high on the sensitised poltical agenda. With so little objective research done, it is very probable that John Patten had no idea during the 1988 debate that thousands of men (see Table 1) would annually have  their reputation, careers and dignities sullied.

The 1999 initiative

In 1999, Crispin Blunt MP (Conservative), introduced a Private Member’s Bill aimed at protecting teachers and others involved in caring for children at educational institutions. For some years prior trade unions and teaching professions had become troubled by the rising tide of bogus and malicious allegations of sexual offences typically made by school children.

This ‘bit of fun’ would see the teacher concerned suspended, humiliated or forced to resign his/her post. Sometimes the fun would go too far and the hounding would lead to that person’s complete nervous breakdown and or committing suicide.

When introducing the Bill, and with teachers solely in mind, Mr. Blunt said in 1999:

“ . . . There has been much discussion about the consequences of the absence of male role models for many children, not least those of single mothers. However, if we encourage a climate of paranoia and suspicion, it is hardly surprising that many young men are unwilling to enter the profession. The Bill offers the profession some protection against false allegations and it should lead to men more readily entering the profession and doing so with more confidence.”

 

Table 2. MPs in favour of Crispin Blunt’s Private  Member’s Bill (1999) (11)
Crispin Blunt	Robin Corbett	Ian Bruce
Nick St. Aubyn	Gerry Steinberg	Edward Leigh
Tim Loughton	Ian Cawsey	Graham Brady
John Bercow	Phyllis Starkey	– –

The 2003 amendment

During the passage of the Sexual Offences Bill 2003, Lord Ackner moved a clause that would have granted defendants the same right to anonymity as complainants. [8]

His speech is worth recalling as he offers an answer to those women MPs who demand a cast iron reason for extending anonymity to rape defendants. He was of the opinion that in the 12 years (1976 – 1988) nothing had been suggested or heard to indicate that anonymity for rape defendants had worked to the disadvantage of justice or the police in making their enquiries.

The sole reason for changing the 1976 legislation appears to revolve around Professor Temkin’s assertion that in a single instance Wiltshire Police felt inhibited by the anonymity rules from publishing the name of a man who was wanted for rape. He subsequently raped another woman before being caught. [9]

Joel Bennathan QC, is cited in the report as possibly being connected with a Police Federation article “Against anonymity is the argument that justice must not only be done but be seen to be done” (date unknown). [10] The inference is that he or the Police Federation (or both) were opposed to anonymity for rape defendants.

Left: Joel Bennathan QC, has defended in virtually every major terrorist trial in recent years. He has also acted in murder, fraud and armed robbery cases.

However, in 2001 and to the surprise of many, Mr David Calvert-Smith the Director of Public Prosecution (DPP) and head of the Crown Prosecution Service (1998 to 2003), came out in favour of anonymity for defendants.  Calvert-Smith, was of the view that anonymity for defendants in all sex cases would not affect the conviction rate or the ability to prosecutes rape and child abuse cases (The Independent, 12^th  Jan 2001).

“It would not make the life of a prosecutor any more difficult, and a case could be made [for granting anonymity until conviction] for those accused of rape or other sexual offences like child abuse which is just as damaging to a person.”

The Law Society (solicitors) also entered the discussion with a comment from their chairman of the criminal law committee, Malcolm Fowler. He was of the opinion that there was a “powerful argument” under the Human Rights Act for named defendants to claim, in cases where the complainant was not identified, that their rights had been breached.

Article 6 of the European Convention on Human Rights gives defendants the right to an impartial trial, he said, and identifying one party and not the other might create a perception of unfairness. Stephen Kramer QC, chairman of the Criminal Bar Association (barristers), agreed that a change in the law merited “serious consideration”. The reply from the Home Office was that ministers were “aware of the concern” but had no plans to change the law at the present  (The Independent, 12^th  Jan 2001).

In the same 2003 debate it was suggested that rather than allowing anonymity for rape defendants to expire when they had been found guilty, anonymity might be restricted to the point at which the suspect is charged and/or put on remand/bail. This latter restriction was a sham which, in actuality, offered no more anonymity than the police offered alleged offenders currently.

The ineffectiveness and futility of this approach was laid bare in Jan 2003 with the arrest of television celebrity Matthew Kelly as he came off stage at a pantomime in Birmingham.

Several days later his holiday home in Sri Lanka was raided by police searching for pornography but they found only family and holiday videos. A month later Kelly was cleared of all charges but by then he had lost many lucrative TV contracts.

During the passage of the Sexual Offences Bill 2003, (see ‘Anonymity in rape cases’  Lord Falconer referred in the House of Lords, to

“. . . guidance issued by the Association of Chief Police Officers”, which made it clear that  anyone under investigation but not charged should not be named or have details provided that might lead to their identification before they are charged. “

The effectiveness of that commitment is clear for all to see and the concession meaningless.  (See ‘Anonymity in rape cases’ http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04746.pdf).

The time lapse can be anywhere between 1 and 2 years before the accused is acquitted in court or if he finds the charges have been dropped / retracted he may still have to wait between 3 to 9 months. High profile figures and celebrities such as Neil Hamilton and Matthew Kelly wait considerably shorter lengths of time.

Protagonists, notably in the form of Baroness Kennedy and Baroness Noakes, accepted that there were problems relating to the publicity that may occur before a person is charged, e.g. charges might be dropped or the accuser may retract her statement.

Baroness Noakes wanted to make sure that defendants’ anonymity would cover everything from arrest onwards. However, Baroness Kennedy’s concern was that anonymity should go no further than the point of charging. Her argument was that naming the person charged with the rape offence was one sure ways to encourage more witnesses to come forward.

This is an argument repeatedly made and made again in 2010, so it deserves some further analysis. Its rationale lies in the preconception that all rapists are either serial rapists or repeat rapists. Only 1% of those convicted of rape have raped before and the number of rapists who have raped in a serial manner are very much fewer than that. Multiple rapes attract long prison terms, not uncommonly 25 years or life. So the prospect of each one of the 13,000 rape claims made annually bringing forth a multiple rapist is infinitesimal. Once arrested and convicted that type of rapist is, for all intents and purposes, permanently out of circulation. 

Lord Ackner’s new clause was accepted on a close division, in 2003, by 109 votes to 105.

The Select Committee on Home Affairs also came out broadly in favour of anonymity for the defendant accused of rape (Fifth Report, 2002 – 03).  

However, the reasoning of how it should be implemented was from another planet. Their high minded concern was that: [11]

“ . . . If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal.” – para 76.

Who wants to be vindicated by a highly publicised acquittal ? Isn’t it humiliating enough for an innocent man to endure a trial and media coverage based on a false and malicious accusation ?

However, at Para 80 it was recommended that:

 “. . . . the reporting restriction, which currently preserves the anonymity of complainants of sexual offences, be extended to persons accused of those offences.”

And then, ignoring the personal abuse experience by many including Matthew Kelly, they went on to recommend that;

 “. .  .  . the anonymity of the accused be protected only for a limited period between allegation and charge.”

This, they somehow convinced themselves, would strike the right balance between;

“ . . . . the need to protect potentially innocent suspects from damaging publicity and the wider public interest in retaining free and full reporting of criminal proceedings.”

The Labour Government of the day rejected the arguments and it was subsequently removed by the Commons, by 338 votes to 173.

Lord Falconer, speaking when the Bill returned to the House of Lords, suggested that:

“Singling out defendants in cases of sexual offences, as is being proposed, might also give the impression that there exists a presumption of doubt about the credibility of the complainant in sex offence cases which does not exist with other kinds of offences.”

What has characterised every debate (in every decade), has been this insistence on hair-splitting and dancing-on-a-pinhead. Having introduced the cancer ‘by singling out’ one type of accuser, rape, the anti reformers use all the methods, foul or fair, at their disposal to maintain the status quo.

Baroness Blatch epitomised the frustration felt as ever more bizarre arguments and obscure and eccentric rationalisations were brought into play in an attempt to obfuscate: [12]

“My Lords, anonymity for women has been singled out for a particular sort of offence so how can that be used as an argument against anonymity for men ?”

Liberal Democrats, said Baroness Noakes, wanted to grant defendants anonymity but feared that:

“There have been many attempts to find a good legislative solution to the problem. All attempts have been comprehensively rejected by the Government. We continue to believe that these issues are important. Defendant anonymity is important, especially in cases of sexual offences. We are genuinely disappointed that the Government have failed to find a solution with us to those very real issues. If the Government had wanted to find a technically competent solution one could have been found, but they did not.”

The Government of the day – and the Minister – made it plain that their hopes were pinned on a self-regulatory solution – the same self-regulatory solution that befell Matthew Kelly.

It did not escape her attention that if self-regulation does not work, more innocent lives will be ruined.

John Warboys

The bête noir of those opposed to anonymity for rape defendants is the case of John Warboys. So before moving on, an examination of its actual construction would be fruitful. The April 2009 conviction of serial rapist John Warboys (the black cab rapist) is repeatedly cited to back up the line of reasoning for denying anonymity. [13]

But the John Warboys case is a one-off and is more due to faulty police methodology than the benefits of publicity. We can’t be reasonably expected to make laws on the basis of one odd ball case or a handful every decade.

The John Warboys case is an example of where publicity did not make other women came forward. They came forward only after the event of the arrest and prosecution of Warboys.

The case started with the police who failed to link together common patterns beginning in 2007. This failure allowed this man to commit sexual assaults on 12 women, and one rape – not 19 rapes as is sometime mentioned in reports.

Warboys was actually convicted of one count of rape, five counts of sexual assaults, one attempted assault and 12 drugging charges. One of those drugged victims who managed o get out of his black taxi cab said in court, “The worst thing is not having peace of mind. I’m 99.9% sure that nothing happened to me but I will never know.” Warboys was jailed ‘indefinitely’ so as mentioned earlier he is unlikely to ever rape again.

After the conviction, and wishing to be seen as thorough, London’s Metropolitan Police, called for more women who had been attacked to come forward. As of Oct 2010, an additional 102 women from Dorset to London had made complaints going back over 13 years. The unadvertised cost of this exercise is an additional 100 claims, each for the £7,500 rape compensation available for the CICA (“Compensation – right or racket ?). [14]

Conclusion

The counter-argument is always, “Where does one draw the line ?” If a person has his or her reputation ruined by scurrilous accusations of, for example, dishonesty, and they are plastered all over the press, why should they not benefit from the chance to clear their name from behind closed doors, instead of being pre-judged in a “trial by media” – or a courtroom trial with a high level of public media coverage ?  The selection of a jury and a trial not always in the same town as the offence addresses thoses core issues.

The answer also lies in the special nature of sex offences. It is possible to argue, from the same starting point as the Heilbron committee, that the special circumstances that justify, in part, anonymity for complainants should apply equally to the accused. Some would say that we cannot legislate against the media’s obsessive coverage of anything to do with sex. That may be so, but we need to look at whether the scales of justice are correctly balanced. Here, we may draw a comparison with Sweden, where anonymity plays a much greater part in the justice system.

Appendix A

Rose Heilbron (b 1914 – d 2005). Her ‘most famous’ (or infamous) judgment came in 1987 when she ruled against an Oxford undergraduate who was seeking to prevent his former girlfriend from aborting their unborn child. Her ruling was that there are no grounds for preventing an abortion at a father’s instance if the foetus is incapable of being born alive was unanimously upheld by the Court of Appeal. The House of Lords agreed her decision and an important precedent was created. The giving of this proverbial inch has resulted in the loss of a mile. Fathers’ rights regarding pregnancy are today minimal to zero.

Source: Heilbron’s obituary. http://www.telegraph.co.uk/news/obituaries/1505119/Dame-Rose-Heilbron.html

Heilbron and much of her generation could not have contemplated the possibility of cases like that of Sean Hodgson or miscarriages of justice on such a grotesque scale.

Heilbron grew up and prospered in an era that believed that the English legal system was the finest in the world. We now know that to be untrue and a fallacy. It is a legal system than works well and is the ‘finest’ only where money is made available. The average user of the court- the plumber owed money by a client etc – finds it far from adequate. A visit to one’s local Magistrates’ Court on a Monday morning – dealing with breaches of the peace and drunk and disorderly’s – will demonstrate how perfunctory justice can be.

Sean Hodgson, from County Durham, is a man who spent 27 years in jail for a crime he did not commit. He was convicted in 1982 of the rape and murder of Teresa De Simone in Hampshire. Miss De Simone’s body was found in her car at the rear of a pub in Southampton in 1979 (NB. 1979 to 1982 and no suspect ?).

A comprehensive forensic review in 2008 (something I have urged on the Home Office in rape cases since June 2000) discovered that DNA evidence found at the scene did not match a sample given by Hodgson. He was released and later Hampshire Police exhumed the body of a David Lace, who had committed suicide at the age of 26, and discovered the DNA from the De Simone murder was his, not Sean Hodgson’s.

Source: BBC http://www.bbc.co.uk/news/uk-england-12016599

Appendix B

1. The erosion of the defendant’s right, 2.. ‘due process’ 3. the Morgan Case and 4. loading of the dice.

Morgan defence

A case that contributed to the setting up of the Advisory Group on the Law of Rape better known as the Heilbron Report (1975) (Cmnd 6352), is simply known as the Morgan Case. Given the salacious nature of newspaper reporting that most rape trials attracted this possibly proved to be the tipping point.

Rape was then currently defined by Sect 1 of the Sexual Offences Act 1956 as sexual intercourse (defined in Sect 44 as penile penetration of the vagina or anus), knowing that the person does not consent or being reckless as to whether there is consent (all that changed with the 2003 Act).

At the time, ie after 1956, an honest belief that the complainant was consenting was a defence, regardless of the reasonableness of that belief. The reasonableness, or otherwise, of that belief of consent was evidence merely of whether the belief was genuinely held. This was the view held by the House of Lords when the issue was first considered in the case of DPP v Morgan.

Confusingly the Morgan case of 1976 is cited as the reason for the establishment of the Heilbron Report which is invariably cited as a 1975 event. One possible explanation is that the DPP v Morgan case of 1976 started life in 1974 or 1975 and only reached the House of Lords in 1976.

The Morgan defence hinged on – as always – a fine point in law, namely, a defence of ‘honest belief’ in free agreement should not be available where there was self-induced intoxication, which generally does not reduce a defendant’s criminal liability in relation to any offence. The House of Lords held that in a trial for rape a subjective belief by the defendant that the victim consented to sexual intercourse afforded a defence. What is and is not consent has consistently bedeviled rape trials.

That ‘belief by the defendant’ concept came under pressure in subsequent years and was finally killed off in the Sex Offences Act 2003. Before being killed off makeshift provisional measure were introduced to blunt its impact including abandoning the right to reveal the complainants previous sexual history with third parties, any previous sexual knowledge or intimacy with the defendant, any blanket right to cross- question the complainant, etc etc.

The Morgan case resulted in Sect 1(2) of the Sexual Offences (Amendment) Act 1976, which declared that the presence or absence of reasonable grounds for the belief that the other party was consenting are matters to which the jury may have regard in considering whether a defendant did so believe. This was not the end of the interfering in judicial matters. Judges were given instructions by parliament that rendered their position invidious.

For instance, in 1996 a new clause was inserted to the effect that where a trial of a person for a sexual offence was underway, evidence offered either by the prosecution or by the defence which might to question or suggest an absence of complaint or a delay by that person in making any such complaint should receive a judge’s warning. [15]

The trial judge was obliged to publicly warn the jury that the absence of complaint or delay in complaining did not necessarily indicate that the allegation that the offence was committed was false. Additionally, he was obliged to inform the jury that ‘there may be good reasons why a victim of a sexual offence may delay in making, or may refrain from making, a complaint about the offence.’

In “Sexual Offences Bill”, published in Feb 2003 by ‘Liberty’, they quote Professor Jennifer Temkin as pointing out that proposal put forward that year would:

“. . .  preclude the Morgan defence not merely where the defendant was drunk as in the Law Commission’s proposal, but also where he failed to take reasonable steps to ascertain consent and where he was reckless. In the latter case, where he has a belief in consent but at the same time could not careless, he will be liable.”

The importance of making the man liable in legislation cannot be over-emphasised, not only in this topic, rape, but in all fields of recent legal reforms.

Another law not yet mentioned but of relevance is the Youth Justice and Criminal Evidence Act 1999 especially Section 41. A whole book by Jennifer Temkin is devoted to this one topic. Section 41 prohibits the giving of evidence and cross-examination about any sexual behaviour of the complainant except where the court expressly allows it. Unfortunately, this collides prima facie with Section 3 of the Human Rights Act 1998 which requires that:

“So far as it is possible to do so, primary legislation … must be read and given effect in a way which is compatible with the Convention rights”.

For the technically minded I can do no better than to quote the following definitive answer taken from “Regina v. A (Respondent)”, (on Appeal from the Court of Appeal (Criminal Division) 17 May 2001), [16] which has now been overtaken by events:

“. . . . Parliament enacted legislation which subjected the admission of evidence of the previous sexual experience of a complainant with third parties to a leave requirement. It did not touch on prior sexual contact between the complainant and the accused: Sect 2(1) of the Sexual Offences (Amendment) Act 1976. Section 2(2) provides that the judge shall only give leave “if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.” The statute did not achieve its object of preventing the illegitimate use of prior sexual experience in rape trials.”

A defence of honest belief in free agreement should not be available where there was self-induced intoxication, which generally does not reduce a defendant’s criminal liability in relation to any offence, based on the Majewski rules (see Appendix C).

Appendix C

 

DPP v Majewski

No discussion would be complete without mentioneing the long tentecles of the Majewski case. To fully understand this case it is useful to have an working knowledge of the Thin Skull Rule and why certain events and circumstances render one liable and on other occasions do not.

* Causation – if someone’s act is to have any consequence legally, it must have in some way cause a victim harm. The legal definition of “causation” is that “but for” the defendant’s conduct, the victim would not have been harmed.

* If more than one person causes the harm the rule states that culpability shall be proportional.

* The final rule of causation is that one must “take the victim as you finds him.” For instance, if a person gives someone’s head a vigorous shake not knowing that the person suffers from a rare spinal condition and dies, then a charge of manslaughter can be brought. Regardless of how unlucky this may prove it is the Thin Skull Rule.

The Majewski case pivots on the offence of “basic intent” (subjective fault and external element). Although purists may dislike this ruling, the law, in the light of the decision of the House of Lords in DPP v Majewski, is that, if a defendant is charged with an offence of “basic intent” requiring subjective fault, and it is proved or admitted that the defendant committed the external element, it is not permissible for the defence to argue that the defendant D acted without the required fault on account of self-induced intoxication.

Majewski was therefore held to have been properly convicted of the “basic intent” offences of assault occasioning actual bodily harm and assault on a police officer in the execution of his duty even if he had been so intoxicated, following his voluntary consumption of alcohol and other drugs, that he did not know what he was doing.

According to the House of Lords, the defendant is liable for an offence of “basic intent” when:

(1) if the defendant commits its external element without the fault usually required for liability, if the absence of such fault results from self-induced intoxication; or

(2) if the defendant’s self-induced intoxication causes him or her to commit the external element as an automaton.

Accordingly, there is a rule of substantive law – “the Majewski rule” – that the defendant is liable for an offence of subjective recklessness if unaware of the relevant risk by virtue of his or her state of self-induced intoxication. It follows that, if the defendant commits the external element of an offence in a state of self-induced intoxication, thereby causing harm to another person, or another person’s death, the defendant will not necessarily escape all criminal liability.

To give an example, suppose it is proved that the defendant unlawfully killed (or raped ?) another person while under the influence of alcohol or some other drug voluntarily taken, but it is reasonably possible that the defendant lacked the intent to kill (or rape ?), or cause grievous bodily harm on account of his or her intoxicated state. In such a case, the defendant is not liable for the “specific intent” offence of murder but the defendant is liable for the alternative “basic intent” offence of manslaughter (or rape ?).

“The Majewski rule therefore provides an alternative, objective basis for establishing liability if the offence charged is one of “basic intent”. The usual subjective approach is qualified for offences requiring nothing more than recklessness because of the culpable, self-induced reason for the defendant’s inadvertence.” – Lord Edmund-Davies:

The chain of reasoning justifying the rule was advanced by the House of Lords in support of the Majewski rule and can be summarised as follows:

1/. the maintenance of order and the need to keep public and private violence under control is the prime purpose – or one of the prime purposes – of the criminal law;

2/. self-induced intoxication through the consumption of alcohol has been a factor in crimes of violence, such as assault, throughout the history of crime, but in recent decades the problem has become more acute by virtue of the voluntary consumption of other drugs.

3/. to allow the defendant to avoid all liability in a case where he or she has caused injury or death to another person, on the basis that he or she lacked the fault element for liability because of self-induced intoxication, would fail to give effect to the prime purpose of the criminal law; in particular, it would leave the citizen legally unprotected.

4/. to provide the community with sufficient protection, therefore, there must be a “substantive rule of law” to the effect that “self-induced intoxication provides no defence” to an allegation that D committed an offence of “basic intent”

5/. the interests of the accused are adequately protected in that the trial judge or magistrates will, when sentencing, “always carefully take into account all the circumstances … before deciding which of the many courses open should be adopted.”

END

Footnotes:

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[1] Vol 328 cc 872-4 872. http://hansard.millbanksystems.com/commons/1999/mar/30/sexual-offences-anonymity-of-defendants

[2] “Anonymity in rape cases” Standard Note: SN/HA/4746 http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04746.pdf

[3] The Guardian. http://www.guardian.co.uk/law/2010/aug/11/legal-heroes-rose-heilbron

[4] It is also worth noting that this trailbrazer (Heilbron) also set an ugly precedent in 1987 that excluded fathers from any part of a decision regarding arbortion by their partner and ruled on a foetus’s survival (at 18 weeks) outside the womb.

[5] An example is the Sheffield man convicted in 2008 for repeatedly raping his two daughters. http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04746.pdf

[6] House of Commons Debate, 28 June 1988 (Vol 136 cc204-19). http://hansard.millbanksystems.com/commons/1988/jun/28/right-of-anonymity-to-all-victims-of-and#S6CV0136P0_19880628_HOC_231

[7] http://hansard.millbanksystems.com/commons/1988/jun/28/right-of-anonymity-to-all-victims-of-and#S6CV0136P0_19880628_HOC_231

[8] Which became the Sexual Offences Act 2003.

[9] Jennifer Temkin, Rape and the Legal Process (OUP, 2nd Edn), p 308. See also Professor Liz Kelly and Cathy Halloran (Rape Crisis Federation / Campaign to End Rape).

[10] See also Ev 96,: http://hansard.millbanksystems.com/commons/1988/jun/28/right-of-anonymity-to-all-victims-of-and#S6CV0136P0_19880628_HOC_231

[11] http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/639/63910.htm

[12] 2nd Jun 2003, Col 1094 http://www.publications.parliament.uk/pa/ld200203/ldhansrd/vo030602/text/30602-15.htm

[13] This does not refer to Warboy’s race or ethnicity but to the black London taxi cab he drove in London.

[14]  “Compensation – right or racket ?” http://robertwhiston.wordpress.com/2010/11/20/22/

[15] Hansard, 12th June 1996, Column 355.  http://www.publications.parliament.uk/pa/cm199596/cmhansrd/vo960612/debtext/60612-33.htm

[16] Regina v. A. http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010517/regina-1.htm