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The Lord Bishop of Chester: My Lords, I speak from this Bench in support of the amendment. The issue of emotional frailty cuts across both the accused and the victim. One can only imagine what it is like to be falsely accused, especially if one is in a prominent position. Occasionally I come across cases of clergy who are accused. The facts are often difficult to prove: in such cases, it is one person's word against another's. The point that more victims may come forward is important. One must weigh that carefully against the other considerations to which noble Lords have referred. On balance, the argument comes down in favour of granting the same rights of anonymity in principle to those who are accused. I support the amendment.

6 p.m.

Lord Lester of Herne Hill: My Lords, I was not intending to take part in the debate until I listened to speeches from all sides of the House.

I strongly support the way in which the Bill secures a better balance between the rights of defendants and the rights of victims in rape cases. That is entirely sensible. Introducing the objective elements into guilty intent is highly beneficial. Precisely because we have a fairer balance between the rights of defendants and those of victims, it is important that we also secure a fair balance between the rights of defendants and the rights of victims in rape cases so far as publicity and anonymity are concerned.

I fully take the general point made by the noble Baroness, Lady Kennedy of The Shaws, about the difference between formal equality and substantive equality, and open justice. Normally, I should use those concepts in a similar direction. However, I do not believe that this issue is about formal or substantive equality or open justice. No one is suggesting that the rights of alleged rape victims to anonymity should in any way be withdrawn. I entirely agree with the noble Baroness that that anonymity is crucial in encouraging women to come forward with complaints and to go all the way to trial.

The real question is: what harm does it do if we treat rape trials or the proceedings leading up to rape trials in much the same way as we treat issues that arise in the family courts? We do not regard open justice or anything of that kind as creating an absolute right to publicity for all stages of very intimate details of sexual and family matters in family courts. The same applies to the highly adversarial open system of criminal justice in this country, which often does not sufficiently respect the rights of third parties, children or other vulnerable people.

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The amendment seeks to do something compassionate and sensible; that is, to provide greater protection for the defendant who turns out not to be guilty in a way that does not produce any detriment that I can see either to the public interest at large or to the alleged victim of the rape. For those reasons, I support the amendment, as others from all sides of the House have done.

Lord Lucas: My Lords, first, the arguments that have been raised by many noble Lords will also apply with equal force to some child sex offences, which we shall consider later in the Bill and which have a similar stigma for the people who are accused. When someone is accused of that, it is extremely difficult to rid oneself of it because there is absolutely no public acceptance by anyone, including the inmates of prisons, of child sex offences. However, there are sections of society who are prepared to regard as least some varieties of rape as excusable.

Secondly, in relation to a charge of rape against a defendant, will the noble and learned Lord tell us—if not now, by letter—whether publicity either before the charge or at the moment of charge frequently brings forward other people who wish to support the charge or to produce other instances of it? How frequent is that? If it is not that common, perhaps we could have a system by which the defendant had anonymity but that anonymity was removable by application to the court on the grounds that the prosecution wished to see whether other people wished to bring forward similar accusations. That would protect those more difficult sets of charges, such as an alleged child sex offence as a result of recovered memory syndrome within a family, where it is unlikely that there are other people outside who were similarly affected, as against abuse in a children's home, where one very much wants to know whether others have been affected. Such a flexible arrangement would be a way of getting over some of the objections.

Lord Falconer of Thoroton: My Lords, a charge of a sexual offence that is not proved can be extraordinarily damaging. The amendment deals only with the position post-charge, not the position pre-charge. I shall deal with the position post-charge first and then with the position pre-charge.

My noble friend Lady Kennedy of The Shaws described the starting point exactly. It remains a principle of our criminal justice system that it is open and transparent. People must be able to see what is going on in a criminal case. Introducing anonymity for defendants for those categories of cases could reduce our chances of bringing more offenders to justice and might well impact on public confidence in the system; and we would risk giving out mixed messages, especially within the context of needing to do more for victims and witnesses.

As noble Lords know, anonymity for defendants was granted in 1976. The effect of that was considered by Mrs Justice Heilbron's committee—the very same Mrs Justice Heilbron whom the noble and learned Lord, Lord Ackner, relied on to justify his position in

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terms of not introducing an objective element in relation to mens rea for rape. Mrs Justice Heilbron recommended that anonymity be repealed and the government of the day acted in relation to that proposal. She gave a number of arguments, one of which involved the extent to which anonymity for the victim encouraged victims to come forward while withdrawing anonymity for the defendant would in certain cases help other victims of that defendant to come forward as well. She considered that delicate balance and recommended after the period of anonymity that it be withdrawn.

We believe that the law presently strikes a proper balance between the principle of open justice, in which the public has the wider interest, and the very important need to ensure that victims of sexual offences are encouraged to report such crimes.

Baroness Walmsley: My Lords, am I correct in thinking that Mrs Justice Heilbron's committee sat more than 30 years ago, at a time when the media's coverage of such cases was not as extensive or as headline-making—colourful, perhaps we should say—as it is today?

Lord Falconer of Thoroton: My Lords, Mrs Justice Heilbron's committee sat at the end of the 1970s, which is close enough to 30 years ago. I suspect that the noble Baroness is wrong if she is suggesting that the press in the 1970s were not vigorously and salaciously reporting sex crime cases. I have absolutely no doubt that the press in the 1970s had just as much interest in reporting those cases as they do now, although I cannot give a scientific assessment of that.

The rationale for protecting victims alone is not only to protect them from hurtful publicity but also to encourage other victims to come forward to report the offence and co-operate with the prosecution. Those arguments do not apply to the accused. Even in the case of the complainant, the court has the power to lift the prohibition on publicity if it is necessary to encourage witnesses to come forward and the defence is likely to be prejudiced if the anonymity of a complainant stays in place.

The noble Baroness, Lady Kennedy of The Shaws, was absolutely right when she said that talking about equality of arms is completely misleading. Equality of arms means that when the prosecution and defence are in court, there must be a level playing field between them. However, that does not mean that at every stage of proceedings they must be treated differently. I do not believe that anyone in the House would doubt that anonymity for victims is entirely appropriate as a means of encouraging people to complain.

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. That could hamper efforts to encourage more victims—mainly women—to come forward to report sex offences committed against them, and it would be

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unwelcome to risk implying that such a change was being made because complainants in such cases were making false or malicious accusations.

We think it would be wrong in terms of promoting proper prosecution of these cases to single them out as those where there is a special protection for the defendant. We have considered the matter carefully but we do not think it would be right to give anonymity after charge.

The Association of Chief Police Officers has issued all police forces with guidance on the pre-charge position applying to all offences. The guidance makes 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.

Lord Ackner: My Lords, the case I gave was an example of the flagrant way the press deals with the situation. In the local journal—the Advertiser I think it was called—all the details I have given and more were provided. Where does he get this protection from?

The noble Baroness, Lady Kennedy, did not seem to think there was any protection pre-trial, hence her modest suggestion. Am I to understand that the noble and learned Lord rejects even that?

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