Dr Conor Hanly: Anonymity for rape defendants?
Dr Conor Hanly, lecturer at NUI Galway School of Law and author of the 2009 book Rape and Justice in Ireland, writes for Irish Legal News today on the issue of anonymity for rape defendants.
The trial in Belfast of Paddy Jackson and Stuart Olding for rape brought the issue of defendant anonymity into sharp relief. The complainant’s identity was protected by law, but the identity of the defendants – along with their photographs – was literally splashed on the front page of every newspaper in Ireland, Northern Ireland and England.
Had this trial taken place in Ireland, the position would have been entirely different – section 8 of the Criminal Law (Rape) Act 1981, as amended, prohibits the publication of any material that might identify any person charged with a rape offence, until conviction. Should Northern Ireland follow Irish law?
In his preliminary report on Northern Irish rape law, the retired judge, Sir John Gillen, has recommended that a person suspected of committing a rape offence should not be identified until charged, but thereafter the media should continue to be generally free to publish his identity. Sir John’s primary reason was the “compelling public interest argument that naming an accused after charge in some instances leads other witnesses and complainants to come forward into the criminal justice system”.
It has been said that media reporting of law cases is the “embodiment of the principle of open justice in a free country” (R v Croydon Crown Court  EWCA Crim 50, at para.32, per Sir Igoe Judge). Nevertheless, numerous restrictions have been placed on this reporting, all justified by the need to achieve some other policy objective. So in incest cases, a convicted defendant cannot be identified in order to protect the victim’s identity; complainants in sexual cases cannot be identified in order to encourage victims to come forward to the police. The question is whether there exists any such justification to extend these restrictions to cover the defendant’s identity in rape cases.
In enacting section 8 of the 1990 Act, the Oireachtas was prompted by a desire to grant the defendant the same anonymity as the complainant, as well as from a recognition of the reputational damage that even an allegation of rape can cause. Sir John specifically rejected this justification, noting that the policy considerations behind protecting a complainant’s identity did not apply to a defendant. This is true, but there are other public policy issues that arise in a rape trial beside the need to encourage victims to come forward.
A person charged with rape is presumptively innocent until such time as the State has proven his guilt beyond a reasonable doubt. Upon acquittal, that presumption of innocence continues, and the defendant is entitled to resume his life. This, at any rate, is what is supposed to happen, but frequently does not. Sir John himself referenced multiple cases of acquitted defendants continuing to receive abuse in public and on social media, and suffering professional harm and psychological distress. Some were forced to leave Northern Ireland. The Jackson/Olding case itself offers a similar example – both men had to go to France in order to continue their professional careers.
This experience, coupled with the emphasis that Irish law places on the presumption of innocence, surely creates a legitimate public policy justification for anonymising rape defendants until conviction. Indeed, in most cases, it is difficult to see any real public interest in knowing the name of a person charged with an offence. The public needs to know about crimes committed, the resources being deployed to prevent crime, and the efforts being made by the State to vindicate the rights of crime victims. Thus, the media should report the fact and details of a crime, and the fact and outcome of a prosecution. But beyond voyeurism and gossipmongering, what actual benefit in most cases does the public derive from knowing the name of the accused person?
Sir John and others refer to cases such as that of John Worboys, a London taxi driver convicted in 2009 of multiple counts of rape. Due to the publicity of the case, many other victims came forward to the police. Yet, cases like this, in which there is a need to encourage corroborative evidence to come forward, can be accommodated within section 8 – a 1990 amendment to section 8 allows the courts, on the application of the DPP, to lift the defendant’s anonymity if doing so is in the public interest. This provision balances both the defendant’s good name and presumption of innocence with the public interest to have serious crimes properly investigated and prosecuted.
Furthermore, for forty years, Irish law has protected a rape defendant’s identity, and there is no evidence that cases have been lost as a result. It is striking that neither the Dublin Rape Crisis Centre nor the Rape Crisis Network Ireland have sought the removal of section 8.
The Irish approach to anonymity in rape cases works to protect a presumptively innocent person’s good name until such time as has has been proven guilty of the offence with which he is charged. After forty years, there is no evidence that it has caused any injustice, and it is entirely uncontroversial even among victims’ groups. Thus, no reason has been shown to change or remove section 8, and it provides a reasonable template upon which a revision of Northern Irish law might be based.
- Dr Conor Hanly is a lecturer at NUI Galway School of Law.