Tag Archives: Anonymity

Boy, 15, raped a boy, 13, for ‘not having a good phone’

youth justice

Facts

A 15-year-old boy pleaded guilty to two counts of rape. When aged 14, X (he cannot be named because of his age) approach V (aged 13) whilst V was waiting at a bus stop on his way home from school.

X asked V where he lived, where he went to school, whether he was in a gang and whether he had a phone. When V replied that he did not have a phone, X told him he must go to a block of flats in order that he could be searched.

X then grabbed V, ordered him to remove his boxer shorts and raped him, telling him to “do it like a girl”. V was begging for X to stop and X replied “Good, that’s what you get for not having a good phone [to steal]. I’m going to scar you for life.” After the rape, X then slapped V in the face and told him not to look at him.

X had a previous conviction for possession of cannabis and had been reprimanded for carrying a knife.

News reports are here (Evening Standard), here (LBC) and here (BBC).

Sentencing

X was sentenced to 4 years’  detention under section 91. This is for grave crimes committed by those under 18. See here for our explanation of youth custodial sentences.

Judge Roger Chapple, sentencing, told the defendant that his offences had been “dreadful” and the effects on his victim “profound”.

“You were apparently punishing him (the victim) for not having a mobile phone you could steal from him,” the judge said.

“A quite sad and disquieting theme that has run through this case is the power, control and domination you sought to exercise over your victim and your apparent wish to degrade him.

“When he told you how much you had hurt him you expressed satisfaction and threatened to scar him for life.”

This throws up a couple of important – difficult – issues.

Punishment

The first issue is punishment. What is the appropriate sentence? For an adult, the sentence is likely to have been more than double the four years given to X.

On one side, there is the need to punish X, and a lengthy custodial sentence is necessary to a) deal with the issues X obviously has and b) mark the seriousness of the offence, ensuring that an appropriate punishment is imposed. There is also the need to protect the public where appropriate, however here, X was not assessed as dangerous (within the meaning of CJA 2003) warranting an extended or life sentence.

On the other, there is the desire not to unnecessarily incarcerate children and young offenders. X is clearly a child with issues which need addressing. A sentence maeasured in years is obviously going to have a significant effect on X’s life and restrict what he can do once he is released. This may be the beginning of a life of crime if, for example, he leaves custody with no education, a drugs habit, no skills, no job prospects.

Whilst there is a duty to impose the shortest possible sentence commensurate with the seriousness of the offence, there is some discretion within that and courts can – and do – take very lenient approaches to some offenders.

So, what is the correct sentence? For my money, 4 years seems right.

Anonymity

The second issue is anonymity. As a general rule, those under 18 are anonymised.

The victim, V, will remain anonymous for the rest of his life as he is a victim of a sexual offence (see here for more about sex complainant anonymity).

As for X, his identity is currently subject to reporting restrictions. That means that publication of his name, image or any information which might lead to the public ascertaining his identity is prohibited. This would most likely include his school and where he lives.

The Judge is reportedly considering a request to lift the anonymity order in relation to X. Should he do so? We understand his decision will be given on 17 July. 

There was a lot of criticism recently about the lifting of anonymity orders in relation to child offenders – this was sparked by the news that John Venables was to be released from prison . Many thought that had the judge decided to refuse the request to publish details of Thompson and Venables’ identities and their pictures, then some of the anger surrounding the may have subsided. As it currently is, their names can keep cropping up in the press, as the order made by the judge permitted their identities to be known, but no images etc. of their appearance to be published after 2001.

This is tricky issue. There is force in the argument that says offenders should be named and shamed, and that such a process features as a part of the denunciatory value of sentencing. However, there is much force, in my view, in the argument that supports retaining that anonymity as it would allow X to serve his sentence and attempt to rebuild his life.  He is a young boy who clearly has issues which need addressing. The fact he has a criminal conviction, for a sex offence, will serve as an ongoing reminder – as will signing on to the sex offender’s register. By virtue of the sentence he received, the conviction will remain on his record forever. Is his custodial sentence, criminal record and requirement to sign on to the sex offender’s register punishment enough?

 Should the courts give him a helping hand to turn his life around and protect his identity? Or should the court grant the application to publish his identity and leave him with an albatross around his neck for the rest of his life?

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Anonymity for complainants in sex cases

 

The anonymity

Sexual Offences (Amendment) Act 1992 s 1 affords lifetime anonymity to complainants in certain situations.

When does it apply?

When an allegation that an offence specified under the Act has been committed.

The offences to which it applies

Section 2 of the Act lists the offences to which the anonymity under section 1 applies. These include all offences under the Sexual Offences Act 2003 (excluding sex with an adult relative, intercourse with an animal and sex in a public lavatory). This includes rape, sexual assault, and all child sex offences. Also included under the Act are attempts to commit such offences.

What is prohibited and to whom does it apply?

The publication of any matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed.

This includes their name, address and image (still and moving)

How long does the anonymity last?

For the complainant’s lifetime.

What does ‘publication’ mean?

It means traditional media, such a newspapers, magazines and news programmes, but also new media, such as online blogs, news websites, and crucially, Twitter and Facebook.

Offence of breaching anonymity

Section 5 makes it an offence to publish matters listed above.

What is the penalty?

A level 5 fine (currently £5,000, but there are plans to increase the powers of the Magistrates’ to impose unlimited fines)

“But I didn’t even know there was a law prohibiting it”

Tough. Ignorance is not a defence.

Examples

Ten individuals were convicted of offences under the Act in relation to the Ched Evans case. We covered it here and here.

Recently, Michael Le Vell (Corronation Street actor) was arrested and charged with child sex offences (see here for details). On 1 March, a 23-year-old man from Manchester was arrested for an offence under the Act for allegedly Tweeting the identity of the alleged victim in that case. The Daily Mail reported the story here.

Advice

If you are unsure whether you should be putting something on Twitter or Facebook in relation to the victim of a crime, don’t. It is as simple as that.

Anonymity for rape accused and dispelling rape myths – Mark George Q.C.

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) [2001] 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.

Image courtesy of http://www.inforrm.wordpress.com

Tenth person to pay compensation for naming Ched Evans rape victim

Last year, we reported that nine individuals were ordered to pay compensation for naming the victim in the Ched Evans rape case. Initially there was confusion as to whether the sentences imposed were fines, compensation, or a mixture of the two.

Reports later confirmed that the £624 figure was a Compensation Order.

Today we learn from news reports that Alexandria Hewitt, aged 19, admitted identifying the victim on Facebook and Twitter. She had initially pleaded not guilty, according to the BBC report.

The offence admitted is contrary to Sexual Offences (Amendment) Act 1992 s 1. Section 1 prohibits the publication of the name (amongst other things) of an alleged victim of certain offences for their lifetime, if it may lead to the public to identify that person.

It was said of Hewitt that she did not realise that what she had done was illegal, and that she felt that the victim ought to be named. She later accepted that her comments were inappropriate.

Sentence

The court ordered Hewitt to pay a £405 fine, the same £624 Compensation Order and costs of £600.

The figure of compensation is the same as the others who pleaded guilty in November. The costs order was presumably ordered against Hewitt and not the nine others who had previously pleaded guilty in order to reflect the time and money that her initial plea of not guilty had caused.

Another consideration is that it was said on Hewitt’s behalf that she had initially denied the charge because of a question over whether comments sent only to friends on Facebook constituted public comments.

Having obtained clarification it was now clear that an offence had been committed, he said. In such situations, the reduction in sentence for a guilty plea (starting at 1/3, and reducing the further down the process one gets) can be withheld. This is because where further information is necessary before it is reasonable to expect a defendant to plead guilty, it would not be fair to reduce the credit open to them if they were to plead guilty. After all, would it be right to induce Hewitt to plead guilty (by reducing her credit for a guilty plea) if she wasn’t sure that she was guilty of the offence? I think not.

Judge’s comments

District Judge Andrew Shaw, who previously sentenced the other two women and seven men who named the rape victim, said the only penalty open to him was a fine.

“You identified a victim of rape without considering the consequences and without a full understanding of exactly what you were doing,” he told Hewitt.

£624 Compensation Order for naming Ched Evans’ rape victim on Twitter/Facebook

EDIT: This article has been edited to correct the previously held belief that the offenders were fined. This was based on news reports published at the conclusion of the hearing.

Ched Evans was jailed for the rape of a 19-year-old girl. He received 5 years after a trial in April. Between 20 and 22 April, the victim’s name was published on social media sites.

Ten people were accused of naming the victim of the rape, contrary to Sexual Offences (Amendment) Act 1992 s 1. Nine of the individuals pleaded guilty to the offence under section 1(1) of the 1992 Act, which includes social media such as Twitter and Facebook. A tenth person pleaded not guilty. The named victim was accused of ‘crying rape’ and ‘money grabbing’ on social networking sites.

Lifetime anonymity

Section 1 prohibits the publication of the name (amongst other things) of an alleged victim of certain offences for their lifetime, if it may lead to the public to identify that person.

Compensation Order

Each of those who pleaded guilty had imposed upon them a Compensation Order of £624.

The power to make a compensation order comes from the PCC(S)A 2000 ss 130-132. Compensation orders are available where it can be shown that there has been some loss incurred. This loss may be personal injury, loss or damage resulting from the offence of which the defendant has been convicted.

General principles include the requirement to make a ‘just’ order on the information it has, the compensation is not considered an additional punishment, and of course, the loss must be fairly said to have resulted from the offence. Compensation Orders are not a means of ‘buying’ a shorter sentence and are simply a convenient summary means of ‘putting things right’.

Comment

In the absence of published sentencing remarks, it is unclear whether any punishment was imposed. However one may think it rather odd the compensation order (which is not seen as a punishment) was the only order the court made in this case. Without a punitive sentence, is the court demonstrating that it doesn’t see the offence of naming a rape victim as a serious one? This is particularly relevant as in recent months there has been debate as to the consistency in sentencing and whether the sentences imposed by the courts truly reflect the criminality in each case.

Ched Evan’s is appealing his conviction in the Court of Appeal on Tuesday.