Maura McGowan Q.C. Chairman of the Bar recently suggested that those accused of rape should be accorded anonymity until such time, if ever, as they are convicted. Uniquely in respect of sexual assaults, complainants in such cases have long been accorded the same privilege. As someone who regularly defends in such cases, I have a lot of sympathy with this suggestion. As defence counsel I get privileged access to my clients and their feelings and I have seen the terrible distress and trauma that such allegations can cause, especially when the allegations appear to be unfounded. Nonetheless I am not yet persuaded that those accused of rape should be afforded anonymity.
In support of this suggestion it is often said that such allegations carry a particular stigma due to the nature of the allegations. That is undoubtedly true but it seems to me that there are a number of other offences that carry at least equal if not greater stigma. Do allegations of involvement in terrorism, especially in the current climate, carry less stigma than an allegation of rape or other sexual assault? What about offences involving physical assaults including what amounts to little less than torture of children? Does the murder of a defenceless old lady robbed of her handbag to feed a drug habit not carry at least equal stigma? As there appears to be no suggestion that anonymity should be extended to persons charged with such offences I cannot see a sufficient argument to afford those charged with rape offences a privilege not accorded to others.
By the same token however I do not find the argument of those who oppose anonymity that to allow it would hinder allegations of rape and similar allegations very persuasive. In the huge majority of rape cases the identity of the alleged assailant is already known to the complainant. In those cases where the identity is not known it follows that there is no name to be broadcast. The number of cases in which complainants come forward after an assailant has in fact been named are very rare and would not in themselves justify denying anonymity to an accused.
Amongst the responses provoked by Ms McGowan’s suggestion, Lisa Longstaff writing in the Guardian saw fit to repeat several myths about rape cases that are misleading and which ought to stop being peddled. The first of these is the suggestion that only 6.5% of reported rape cases result in a conviction. This is a misleading figure that has been peddled for many years by those who evidently feel that the criminal justice system is hopelessly biased in favour of those accused of rape and other sexual offences. This figure is only obtained by including all the cases that for one reason or another do not proceed all the way to trial. There are many reasons why this happens. Given the nature of the allegations some complainants who are for example in a relationship with their alleged assailant decide that they do not wish to proceed with the allegation. There are, no doubt, many other reasons why a complainant may withdraw her complaint including the fact that the complaint in fact is false.
The police have frequently been criticised for failing to take rape allegations sufficiently seriously and generally handling such cases with a lack of sympathy and understanding. It is said that this not only discourages complaints being made in the first place but also results in complaints that are made subsequently being withdrawn. On other occasions it is alleged that the way in which the police have dealt with a complaint has led to the case being dropped due to lack of apparent sympathy or sensitivity and poor levels of investigation. The Crown Prosecution Service do not escape from criticism either, it sometimes being alleged that they fail to prosecute cases that ought to be put before a jury because they apply too strict a test as to whether a conviction can reasonably be expected to result. No doubt there is much room for improvement in the handling of allegations of rape from the moment they are first made.
However whatever criticism may be made about the pre-trial process it seems to me to be important not to just lump in the trial process itself as if it was as much to blame for failed prosecutions as whatever may have happened before the trial. Cases of rape and serious sexual assault involving adult defendants all have to be tried in the Crown Court before a judge and jury. Research carried out for the Ministry of Justice by Professor Cheryl Thomas and published in 2010 as well as figures which are readily available on the MoJ website show that contrary to the statistics often quoted by anti-rape campaigners the conviction rate in cases of rape and other sexual offences is in line with that for other serious offences tried in the Crown Court and in fact is higher than for offences such as murder and manslaughter. Given that many of these cases involve one person’s word against another, where it is particularly difficult for a jury to be sure of guilt, these figures strike me as, if anything, surprisingly high. On no rational basis can the conviction rate in such cases before the Crown Court be described as low, let alone anything like the region of 6.5%.
This raises an issue as to why anti-rape campaigners continue to bandy about a figure that is so far removed from the truth. Assuming such people have actually checked the real figures rather than just continued to peddle myths it is hard to avoid the conclusion that these people wish the public to believe that what happens at court helps to contribute to the figure of 6.5%. From this I assume further that such people consider that the trial process itself remains fundamentally unfair to complainants in cases of rape and other sexual assault. The reality strongly refutes that suggestion. In addition to anonymity afforded to complainants there are other important measures that have been put in place to assist complainants to give evidence.
First of all such witnesses do not need to come into court to give evidence. If they choose to do so they can give evidence by means of a pre-recorded video interview with cross-examination then taking place over a television link. They do not therefore need to see the accused person at any time whilst giving evidence nor do they have to stand in front of a courtroom full of people watching them. If they choose to give evidence before the jury in court itself they can be screened from the accused so that again they do not come face to face with the accused.
The second claim made in Ms Longstaff’s article is that “the rape victim’s character remains fair game for defence barristers. The victim has no one to defend her from the most intimate questioning.” I won’t dwell on the use of the word “victim” with its connotation that anyone who claims to have been raped must be telling the truth. Sadly experience shows that some complaints are malicious and false. But it is wrong and very misleading to claim that complainants on such cases are “fair game” or that they “have no one to defend them.” The implication is that the defence barrister can ask any old question which is designed to humiliate and intimidate the witness without reserve. Whilst that may have been the case many years ago it is simply untrue of modern rape trials unless the judge isn’t doing his or her job properly. Nowadays there is substantial protection afforded to a complainant by section 41 of the Youth Justice & Criminal Evidence Act 1999. This was specifically designed to prevent the old fashioned and quite inappropriate cross-examination of a complainant that used to take place in which the woman’s choice of dress and even underwear could be questioned as a means of inviting the jury to conclude that the woman in question was simply a tart dressing up to pull a man and ready and willing to engage in sex with any stranger who fancied her.
As originally interpreted however the section even appeared to rule out questions to establish that the accused and the complainant were in a relationship, something that most people might think could be very relevant to the issue of whether the complainant was consenting to sex. That was so absurd that back in 2000 the House of Lords had to re-interpret the wording of section 41 in order to prevent the trial being unfair to the accused – see R.v. A (No.2)  2 Cr. App. R. 351 HL. But even today section 41 is regularly used by judges to prevent the defence from asking all manner of questions unless firstly they are relevant to an issue in the case and secondly they do not seek to humiliate or simply embarrass the complainant.
Far from the complainant just being a witness, the judge as well as prosecuting counsel is under a duty to ensure that the complainant is not treated unfairly in cross-examination and to ensure that any questions do not infringe the terms of section 41. Provided therefore that the barristers and the judge do their jobs properly a complainant will not be “fair game” and can give evidence knowing that any questions asked have to be relevant. Most people accept that as in any other case so in rape and similar cases the allegations made have to be challenged. There can be no question in any legal system worthy of the name of simply working on the assumption that the complaint is automatically true. But given that the legal system has to allow for such challenge I would suggest that the system has gone as far as it can to ensure that a complainant has the opportunity to give evidence free from harassment and that in so doing whilst their account may well be challenged in robust terms they will not be subjected to improper questioning the purpose of which seem to be simply to embarrass the witness.
If more can reasonably be done to facilitate a complainant giving evidence I am sure the criminal justice system would be willing to listen. It is important however to remember that the system of trial by jury usually involves a dispute to what happened and with what motive or intention it was done and that involves challenges to the truthfulness of the account given by the complainant. That applies just as much to allegations of rape as it does to allegations of robbery of physical assault.
By Mark George Q.C.
Mark is a barrister at Garden Court North Chambers, Manchester.