Justice 1 Committee,

Meeting date: Wednesday, May 30, 2001

Official Report 235KB pdf

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Petition

I believe that the minister will stay with us for item 6, which concerns petition PE265 from the UK Men's Movement.

The petition calls on the Scottish Parliament to protect innocent men against false rape allegations by granting anonymity to those who have been accused. It also calls on the Parliament to introduce a new crime of false rape allegation, to create a register of false rape accusers and to publish annually a study on all rape cases including false rape allegations.

We have taken a fair bit of evidence on the petition. Has the minister had a chance to review that evidence? Have you come to any views?

I have a copy of the petition and a copy of the exchanges from the committee. I do not have all the detail, but I am prepared to try to answer your questions. I have seen some of Mr McAulay's correspondence.

Have you formed any views on the suggestions that have been made? The Law Society of Scotland said that consideration could also be given to extending the right to anonymity until the termination of the appeal process. It suggested that the trial judge could be given discretion to continue the anonymity of the accused upon cause being shown by either party. Other organisations are totally against the idea of giving the accused person anonymity unless it is to protect the victim. What is your view on that?

It is perhaps best to make clear at the outset that—except in proceedings that involve children—there is no provision that protects the alleged victim of rape from being publicly identified in criminal proceedings. It has been done by convention. Judges have the power to clear the court for trials of rape. I know that the newspaper editors take seriously their responsibility not to disclose a victim's identity, but that is done on a basis of convention rather than legislation. The petition therefore asks the Parliament to go beyond the position in law at the moment.

I can understand where the petitioners are coming from. Being subjected to the processes of the criminal justice system cannot be a particularly happy experience, but it is important to consider the matter in the context of the whole system. Prosecutions are brought only if there is a sufficiency of evidence and if, in the view of the Lord Advocate, it is in the public interest to do so. There are therefore already safeguards against a false accusation getting as far as a trial. That does not mean to say that that could never happen, but it is important to remember that those safeguards exist.

It is also important that we have a system of open justice. If we were to grant the accused in one category of crime anonymity, that could lead to anonymity in other categories too. Where, then, would we draw the line? Being accused of murder is also serious. Would we extend anonymity so broadly that we started to undermine the concept of open justice?

For the avoidance of doubt, I state that I do not pretend to have a fixed view on the matter. My questions are to tease out the situation. Although I do not have a fixed view, I do have some difficulties on which your comments would be helpful.

You mentioned that the anonymity of the alleged victim in rape cases is convention, not law. I suggest that that does not matter tuppence, because it happens. If the convention started to be broken, we can be pretty sure that members would put you under serious pressure to turn it into law: there would be strong pressure on you not to allow victims or alleged victims to be named.

My difficulty is with the argument, which I have heard put in the chamber, that there is no justification for anonymity to apply to those accused of rape and not to other classes of accused. The answer might be, why should it apply to that class of complainer and not to others? The reason is that rape is a unique kind of crime; sexual behaviour and rape are thought to be a unique area. In cases of murder or attempted murder, we do not normally give the complainers anonymity.

The petitioners' argument seems to be that if being the victim of rape is uniquely serious, or unique in other ways, being accused of rape is equally uniquely serious. How can we say that for one side of the equation anonymity should apply only to a certain kind of case and, for the other, ask why it should not apply to everything?

There are a number of reasons why anonymity is given to rape victims and I am sure that they have been well rehearsed in the committee. For a start, it is believed that anonymity makes giving evidence less distressing for a victim. If the victim is making an allegation of something that by its nature was unpleasant, anonymity protects them from having a public association with those events. There may even be cases in which the reasons for anonymity relate to safety.

However, one of the most important reasons is that the anonymity of rape victims goes a long way to encourage victims to come forward. I will put it the other way round: the absence of anonymity would do a lot to deter other victims of rape from coming forward. The advantage of anonymity is that it is intended to encourage victims of rape to report an offence that they might not otherwise be minded to report.

There is a distinction between the victim of an alleged offence and the alleged perpetrator: the victim is not the one who is on trial. The view is that if a victim's name is given out in a rape trial, that could in many respects amount to the trial of the victim. The person who is on trial is in a different position.

Trials are not brought lightly. A number of safeguards for the rights of the accused are built into our criminal justice system. They would not necessarily be available to the victim if she were in a position that was tantamount to being put on trial because her name was being mentioned.

I suspect that, on balance, I could go along with all that, but I will just quote some evidence that we have from Ireland. You have been quoting Ireland all morning. It still has anonymity for persons accused of rape. The English have done away with it. The Irish still have it because

"it was considered that in the case of an allegation of rape an unscrupulous complainant could hide behind the anonymity provision while destroying the character of an innocent person if anonymity were not also granted to the accused unless and until found guilty".

All of us who work in the field or who have constituents who have been accused have, on occasions, felt some sympathy for people who are charged with offences and have had their names made public. I know that Phil Gallie has examples from Ayr of rather sad cases. Is there any case for, not a law, but some discretion on anonymity? Is there any case for a halfway house to protect those who should be protected while not protecting those who should not be? It is difficult to get that balance.

On so many things, striking the right balance is always the real challenge. I will stand corrected if you tell me that the evidence and information that you have contradicts our view, but we in the justice department are not persuaded that there is a widespread problem of false allegation. False allegation seems to be the premise on which much of the petition proceeds. Let us remember that false allegations are also criminal. We are not persuaded that the mischief of false allegation exists to any serious degree.

Much of the argument comes back to the fact that if we are to have an open system of justice, it should be made public that a person is on trial for rape, as happens with other crimes. I think that I am right in saying that in the case of a father accused of raping his child, the accused would be anonymous if disclosing his name would identify the victim. Correct me if I am wrong, but I think that, in such circumstances, degrees of anonymity are available.

What worries me is the danger of double standards. You said that there are not many false allegations. I totally accept that. I do not for a minute suggest that because there are hundreds of rape acquittals there are hundreds of false allegations. That would be foolish, but what if there is just one false allegation? When you were proposing to change the law not to allow the accused to cross-examine the complainer, the argument against the proposal was that such cross-examination hardly ever happens. The justice department point, quite rightly, was: what if it happens once? It does not matter whether the practice is widespread; if one person has to suffer, we should change the law.

In the case of cross-examination, we were changing the law for something that in no view is widespread. The number of times a complainer needs to be protected from cross-examination is once every five years. My difficulty is that we are moving to a double standard: if something happens once, that is once too often, but on false allegation the argument is that it does not happen often so it is not important.

The phrase "double standard" tends to have pejorative connotations, but in many respects there are different standards because different standards apply to the person who is accused and the person who is a victim. As I said earlier, the accused is not put on trial lightly. He is put on trial only because the Crown believes that there is a sufficiency of evidence, in which questions of credibility—no doubt Gordon Jackson is more experienced in that than anyone else who is at the meeting—are clearly involved, and because the Crown has taken the decision that it is in the public interest to prosecute. That puts the accused in a different position from the alleged victim.

It is no small matter to take into account the public policy consideration of what it would mean for deterrence if the victim's name were released. The same consideration applies to cross-examination. The hostile cross-examination of a victim by an accused person could have ramifications for other cases. If a false allegation is made, the position is different. As I have already indicated, a false allegation is a criminal matter.

I go along with everything Gordon Jackson said. He made some very apt points. When he spoke about double standards, I suspect that he was referring to the frequency of cross-examination of victims by the accused.

There was hostile cross-examination of the victim by the accused in a case that was heard this time last year. That case received huge publicity. There are concerns that women who have been raped or abused may be deterred from coming forward. It is difficult to see how the disclosure of an accused person's name might lead to a raft of false accusations.

I accept your point. It is important and I have some sympathy with that view, as well as with the idea of anonymity for the accused.

You said that charges are not brought lightly. Maureen Macmillan has demonstrated time and again that there are many cases in which people feel that rape charges should be brought but they are not. The victims must be under intense pressure. We do not know this, but one of the factors that procurators or the Crown Office take into account when considering whether to bring rape charges may be the effect on the individual who is charged. This proposed provision might ensure that more cases are brought and that there are more convictions. Once someone has been convicted, their name should be released. The release of the name of someone who has been charged with an offence—it applies not only to murder—carries a stigma that can have a traumatic effect on families and children. Perhaps the minister should consider that issue.

If the offence relates to a child—

It might be a child from a different family.

The accused would not be identified if that meant the child also would be identified. It would not be appropriate for me to comment on the criteria that the Crown Office uses when considering whether to bring a prosecution. I cannot say whether the effect on the individual who is charged is a factor. That question would be better addressed to the Lord Advocate or the Solicitor General.

I thank the minister for his attendance.

We have given the issues raised in this petition a fair hearing. I do not think that the committee can take it any further, but I am open to contradiction on that.

The committee has had the chance to examine the information that has been brought before it. I still have a great deal of sympathy for the idea of anonymity for the accused, but I would be happy for the petition's other suggestions to be dropped. I certainly do not support one of the ideas that I am supposed to have endorsed.

We have argued about the issue of anonymity and may have set views on what is fair and proper. It would be appropriate for the committee to take a view on that issue, perhaps by voting on it.

I do not think that we would reach a unanimous view on that. Nor am I sure that all of us want to take a decision on the issue at this stage. I certainly do not want to introduce a committee bill to change the current legislation. I am not sure how our voting on a loosely worded motion cobbled together on the back of an envelope would contribute to the debate on this serious issue.

There is some wisdom in that comment. In your letter to the convener of the Public Petitions Committee, you might indicate that members of this committee have some sympathy for the petition's call for anonymity for the accused in rape cases.

I am happy to make my position clear. I understand why the petition is calling for the accused in such cases to remain anonymous. There have been occasions when I have felt that it is unfair that a person's name is bandied about all over the place, but I do not know how to deal with that problem. Passing a law that stipulates that the accused should remain anonymous in every case would be going too far in the other direction. I am on the minister's side, but I also sympathise with the petition. I would be happy for that to be expressed.

I will inform the Public Petitions Committee that we understand why this petition has been submitted but will take no further action on it. We have allowed the issues that it raises to be aired in a public forum.

We can make a distinction in our response. When people such as teachers or policemen are accused of abusing children, that can ruin their careers and put their lives in jeopardy. I understand the concerns about the way in which rape cases are reported in the press. It would help the accused if we could get the press not to make a meal of every case that comes along.

We now have that clear.

This meeting will be followed by a joint meeting with the Justice 2 Committee. The next meeting of the Justice 1 Committee is on Tuesday 5 June, in the afternoon.

Oh no.

Members who have difficulty getting here first thing in the morning should be glad of that. At our meeting on 5 June we will take evidence from the Scottish legal services ombudsman on the regulation of the legal profession and from a representative of the Northern Ireland Human Rights Commission. We will also deal with another petition.

I apologise now for the fact that I will be unable to attend that meeting.

That is noted.

Hope springs eternal in the human breast.

We will take a short break and start our joint meeting with the Justice 2 Committee at 12:40.

Meeting closed at 12:32.