|A justice system Kafka would recognise|
When I read The Trial by Kafka and Nineteen Eighty-Four by Orwell, I took them as warnings of how a bad justice system wrecks lives of those caught up in it. Sadly, some Members of Parliament and the House of Lords seem to view the books more as a guide to how they would like our Criminal Justice System to run.
Today, I read of plans to hide the names of accusers and witnesses from defendants in a large number of cases. Victims of sexual offences, such as rape, have had the right to lifelong anonymity for many years now. This means that it is a criminal offence to publish information that will lead to a complainant being identified. A Bill currently being considered by Parliament would extend that anonymity to bar defendants and their lawyers knowing the name of the person accusing them. This would apply not only in sexual offences, as has been reported in the press, but also in violent offences.
The anonymity currently offered to victims of sexual offences is not total, the complainant will be identified to people through being named in court and in proceedings but that disclosure is limited and, even if the press is present in court, they cannot report the name. Under the amendment to the Policing and Crime Bill introduced by crossbench Peer Lord Wigley who is a member of Plaid Cymru and Labour Peer, Lord Ponsonby of Shulbrede, the police would be banned from disclosing the identity of a victim or witness to a serious sexual or violent offence to the accused if it is reasonable to assume that such disclosure would put the victim or witness at risk of further harm. The clause suggests that the police should consider: previous convictions, mental health and access to “new technology” or social media. The clause applies regardless of whether the person has been charged or not. This is the clause: (Clause 228C at bottom of page 74)
“Victims and witnesses of serious crime: disclosure
(1) A police force or police officer may not disclose the identity of a victim or
witness of a serious sexual or violent offence to the person accused of the
offence, if it is reasonable to assume that such a disclosure would put the
victim or witness at risk of further harm.
(2) In determining whether disclosure is reasonable for the purposes of subsection
(1), a police force or police officer must take into account the—
(a) previous convictions,
(b) mental health, and
(c) access to new technology or social media,
of the person accused of the offence.
(3) This section applies whether or not the person accused of the offence has been
charged with the offence.”
The effect of this clause is that defendants accused of sexual or violent offences would not be entitled to know the name of the person accusing them until they reach court – or possibly ever if the Bill is redrafted to make sense. This is a brilliant example of a terrible piece of legal drafting that is so full of holes it should never have been brought forward and, if Lord Wigley has any idea what he is talking about, cannot be thought of as a serious bid to get this law on the statute books.
The first problem is that subsection 3 tells us that the author of the clause is clearly hoping to prevent defendants ever being told who is accusing them, otherwise why include a ban on post-charge naming? The problem is that subsection 1 only applies to police forces and police officers, not to the CPS or court. So, you have the ridiculous position of police officers banned from uttering the name of the accused while the CPS and court are free to spill the beans. How will that work when the officers draft their witness statements? Will they withhold the name of complainants from the CPS because then the officer would be indirectly informing the defendant? Secondly, the test in subsection 1 is so wide as to encompass just about every conceivable sexual or violent offence. This also applies to the points to consider in subsection 2, especially the “access to new technology or social media”. This seems to suggest that the police should open their minds to any possible future technology that might become available, which is daft in itself but what does “access to… social media mean”? Is it intended that anybody who can access social media (everyone) will be banned from knowing the name of their accuser? Finally, what are the exceptions to the clause? How does one overturn a police officer’s decision? In short, there is no mention of a court having power to override a decision, in other words, it is a powerful piece of law that has no safeguards built in whatsoever. Please take a moment to remember that this applies to witnesses as well as complainants, which makes life doubly hard for defendants.
Let’s just assume for a minute that this isn’t a terrible piece of drafting that should have remained on the author’s computer in a file marked, “do not publish as an amendment to a Bill in Parliament ever.docx” and think about the implications of something like this becoming law.
One leading authority on criminal law has this to say on the principle of open justice:
“The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights (the right to a fair trial). This underpins the requirement for a prosecution witness to be identifiable not only to the defendant, but also to the open court. It supports the ability of the defendant to present his case and to test the prosecution case by cross-examination of prosecution witnesses.”
Who said that? Um… that would be the view of the Crown Prosecution Service on their website! The CPS are correct, knowing who is accusing you of a crime is very important for a defendant because without that knowledge it is easy to overlook key pieces of evidence or pursue the wrong avenue of defence. Sometimes I want to bang my head against a wall and cry; when even the nation’s main prosecuting authority is telling you that open justice supports a defendant in presenting his case you should be hearing sirens and seeing bright red flashing lights when you propose removing that right!
I know that certain people like to imagine that false allegations are few and far between but they are not so rare that we can be cavalier in our approach to achieving a fair and balanced justice system for everyone involved, which includes defendants. This is particularly true of false allegations of assault. I’m sure lawyers all have stories to tell and I doubt there are any official statistics, but I have absolutely no doubt that false allegations of assault are made every day. My favourite must be a woman who accused her husband (they were about to divorce) of assaulting her. Three members of her own blood-family told police it hadn’t happened and her “bruises” turned out to be a skin disorder she’d had for at least the past decade; the client was still put through the wringer of being arrested and held in a cell for about 20 hours before being released without charge.
Who among us can forget the case of Mark Pearson who was accused by a stranger of sexual assault by penetration? It was claimed that he put his hand up the skirt of a “well-known actress” and penetrated her vagina with his fingers as she walked through Waterloo train station. Mr Pearson was eventually cleared by a jury after CCTV showed the assault would have been completely impossible in the fraction of a second that their paths crossed. Let’s be clear, this was a very clear and specific allegation that simply did not take place: it was a false allegation made against a total stranger. It’s also a case in which the CPS presented their evidence in what seems to have been a misleading way to create a false impression that Mr Pearson had far more time to commit the alleged crime than there was. People make all sorts of allegations of crimes to get one up on others, e.g. James Dabbs who is just beginning a 20-week gaol sentence for falsely accusing his ex-wife of distributing revenge porn pictures on the internet when he had posted the pictures himself.
Knowing who is accusing you of a crime is important because people do make false allegations and prosecutors do present evidence in the way that puts their case in the strongest positions, even if that evidence is misleading – they shouldn’t but that’s an argument for another day. If you do not know who is accusing you then how can you possibly know whether there is a motive for somebody lying about you?
In 2007/2008, I was representing a young man accused of murder and GBH. Two witnesses gave evidence against him. Both witnesses identified my client by a street name he had been known to use in the past when he was about 13, which would have been 6 years before the murder. Their accounts were very different and one of them defied belief as it was medically impossible (W claimed V fought for 5 minutes after the fatal blow was struck, however, the Crown's own pathologist said he would have been dead before he hit the floor). There was no other evidence in the case, apart from cell site that initially put him at the scene, although later analysis by a defence expert showed that the prosecution expert had the cell tower in the wrong place and so the conclusions about locations were also wrong. In that case, my client was able to say that “the witnesses are lying” but he couldn’t say very much more than that because we had no idea who they were or why they would decide to lie about him. In that case, the court ordered the Crown to disclosure the witnesses names because he accepted my client could not have a fair trial. The Crown dropped the case against us the day before the trial was due to begin! Had he been forced to go ahead without being able to give a reason for the witnesses falsely accusing him, I’ve no doubt that in an emotive trial involving a dead 15 year old there would have been a real risk of a wrongful conviction. A few months after that case, and another higher profile one, Parliament rushed through the Criminal Evidence (Witness Anonymity) Act 2008, which was quickly repealed for its dreadfulness and replaced with Part 3, Chapter 2 of the Coroners and Justice Act 2009
There are cases where it is appropriate to withhold witness names, in those cases the police can approach a Justice of the Peace to ask for an investigation anonymity order to prohibit the disclosure of information that identifies or might enable the identification of a specified person, under section 76 of the 2009 Act. Note, this is a decision made by a court on an application by the police. It does not give the police carte blanche to make decisions on anonymity. It also has safeguards built in for dealing with disclosure, such as where the person revealing the information does not know about the order.
When a case reaches court, section 86 of the 2009 Act allows a court to make a witness anonymity order in criminal proceedings. In doing so, the court may take any specified measures as it considers appropriate, including withholding the witness’s name and removing it from materials disclosed to any party in the proceedings. The court can also restrict questions in cross-examination that might identify the witness and use voice modulation to distort his or her voice.
Currently, these orders are only available in cases of murder or manslaughter. You might think that rather than create a new draconian power such as the one Lords Wigley and Ponsonby are seeking they might simply petition the Secretary of State to exercise her power under section 74(4) of the 2009 Act to add offences such as rape and GBH to the list of offences that qualify for a witness anonymity order. As our previous Lord Chancellor said, people are tired of the opinions of experts.
I am dubious whether their Lordships really intend this clause to become law. I note it is said to have been drafted by a campaign group called Voice4Victims and I wonder whether this isn’t simply an effort to get some publicity for the group and its cause. Whatever the point, I am very sure that this will not become law but it does show the terrifying path the UK is treading. A nation that was once the bastion of fairness and justice is now reduced to trying to ban defendants from even knowing who is accusing them.