On the February 16, Paul Gambaccini (pictured), the Radio 2 DJ, announced his intention to sue the Metropolitan Police for false imprisonment, trespass to goods and land and the misuse of private information. He described the current Commissioner, Sir Bernard Hogan-Howe, as the “villain of my life” and his experiences of being part of the investigations undertaken into child sexual abuse by Operation Yewtree (he was alleged to have sexually assaulted two teenage boys) as a “witch hunt”. The BBC dropped him, once he had been named, for the thirteen months of the investigation into his alleged offending. This decision coupled with his legal fees, he estimates, cost him £200,000 due to his loss of earnings and his legal fees.
Previously the family of Lord Brittan, Harvey Proctor, the former Member of Parliament, Cliff Richard, the singer, and other high profile personalities who have been investigated by the police for alleged responsibility for offences of sexual violence, and subsequently not proceeded against, have expressed a similar sense of injustice. Christopher Jefferies, the former schoolteacher, wrongly accused in 2010 of the murder of one of his tenants, successfully claimed damages and received apologies from eight national newspapers for their libellous treatment of him following his arrest. There was conjecture in other media sources that the behaviour of these papers had not only been abusive to Christopher Jefferies but had also hindered the police investigation of the murder.
Given the concerns raised above this article explores the arguments for and against adults within the criminal justice system retaining the right of anonymity in all cases prior to any decision being made by the Crown Prosecution Service to formally charge an alleged offender. This would mean that their personal details would only be made public when, in the view of the CPS, there is a more than fifty percent likelihood of a conviction being secured.
The recently published Review of the Youth Justice System in England & Wales (Charlie Taylor, December 2016) included a recommendation that “the Ministry of Justice should consider where the law on youth reporting restrictions should be amended to provide for them to apply automatically in the Crown Court, to children involved in criminal investigations and for the lifetime of young defendants”. The motivation behind the recommendation for the anonymity of young people involved in criminal investigations, proceedings and sanctions is to minimise the risk of their rehabilitation being undermined. The Review comments on the risk that publicity leads to adverse reaction from others, particularly those living within their own communities, and by implication makes no allowance for child development and the capacity of children and young people to be assisted in making positive change in their lives.
The understanding of this risk highlighted by Charlie Taylor is informed by the “labelling theory” first promulgated by Emile Durkheim, the French sociologist, in his book Suicide. He argued that criminal offences are seen by members of the public as acts that outrage society. The outrage becomes the driver for identifying those responsible as deviant to exemplify that they and their behaviour stand outside acceptable societal norms. “Labelling” is seen, therefore, by its proponents as being an effective means for both exercising control over specific types of behaviour and encouraging others from seeing them as being socially acceptable.
George Herbert Mead (Chicago School) and Howard Saul Becker, the author of Outsiders (1963) highlighted the risks of this approach as a means for crime reduction. They argue that such “labelling” has only negative consequences for both the offender and, importantly in this context, for their communities. Their view is that the image we establish of ourselves, and the way in which we behave, reflects the attitudes and behaviours of others towards us. Where the response, such as labelling individuals as deviant, is intentionally designed to have a negative outcome for us an individual our behaviour will inevitably develop the same characteristic. The outcome, the theory suggests, from expressions of public condemnation and the subsequent labelling of individuals as deviant will prove to be a self-fulfilling prophecy and so run counter to the purported objectives of the strategy.
There is no obvious fit between the public identification of alleged offenders during an investigation and the presumption of innocence, a principle regarded as being critical to the conduct of a justice system that is seen by both victims and those accused as being fair. The burden of proof rests in England and Wales with the Crown Prosecution Service. There is no responsibility to be met by those who are defendants to prove their innocence, yet it is evident from the personal accounts of Paul Gambaccini and others facing similar allegations that they do experience a need to do this. The familiar colloquialism of there being “no smoke without fire” applies as media reports begin to build pictures in the minds of their readers, listeners and viewers of the individuals against whom allegations have been made. It would be reasonable to conclude that there is a significant risk as a result that society and local communities will start their thinking about an alleged offender and their case from a presumption of guilt as opposed to innocence.
There is a further complicating factor as there is a need for the criminal justice process to be fair to the victims of crime as well as to those accused. Sir Bernard Hogan-Howe attracted significant criticism when he argued that those making allegations of having been sexually abused by a particular individual should have their testimony scrutinised: “A good investigator would test the accuracy of the allegations and the evidence with an open mind, supporting the complainant through the process…this is a more neutral way to begin than saying we should believe victims, and better describes our impartial mindset.”
He also advocates that those suspected of abuse should retain their anonymity unless a Judge has assessed it is in the “public interest” for them to be named. He acknowledges the difficulties that those reporting allegations of sexual abuse and those supporting them will experience in accepting such a change to the position of the alleged offender within the investigatory stage of the criminal justice process.
Natalie Esther, the founder of “Survivors of Sexual Abuse Anonymous”, a twelve step programme which has the objective to “empower adult survivors of sexual abuse
to make positive changes for life”, felt the changes proposed by the Commissioner to be “insensitive” and as reflecting greater support for the alleged abuser than for the victim, so placing at risk the quality of justice and the degree of fairness on offer within the criminal justice system: “If society is being told not to believe victims of sexual abuse, the statistics that are already shocking will be higher than ever. The message to any perpetrators of this horrendous crime is that it is OK to abuse their victims because nobody will believe them and they will never be held to account”.
The justice process has, therefore, to tread a fine line in the manner with which it treats both the reported victims of crime and those who it is alleged are responsible for the offending behaviour. There are risks within the process of compounding the trauma which may have been experienced by victims and of creating new traumas for those suspected of offending.
The experience of trauma will inevitably have harmful consequences for any individual. If society is to have confidence in its criminal justice system the prevailing view should be that all, who are not its officials, caught up in it are treated with complete fairness and their rights within the process are fully respected so that the truth of any allegation can be arrived at.
The principles underpinning mediation, including that between victims and their offenders, ensure the achievement of an impartial process that clarifies where responsibility lies and enables an insight into the reasons for the offending behaviour. The rights of both parties are guarded by the mediators and are reflected in each party having the opportunity to present their respective cases and to be listened to. The key objective of the process is the achievement of a resolution to the conflict that is proportionate to the seriousness of the offending and to its impact on the victim, and is acceptable to both parties. The satisfaction rating expressed by all parties tends to be very high and interestingly research has highlighted a positive impact on anticipated rates of re-offending. These are principles which should be more prominent than they currently are within the harsh environment for all parties of adversarial Court based proceedings.
There is a strong case for considering the proposals from Sir Bernard Hogan-Howe. The motive for them appears to be a striving to protect the interests of both the alleged offender and of the victims and to retain a sense of fairness within the criminal justice system. His proposals, though, should be applied in all criminal cases, not just those where allegations of sexual abuse have been made. The basis for a Judge removing the anonymity of an alleged offender will need
to be established via legal precedent but the process involved should allow for applications to be submitted by victims and their support groups, for example Victim Support, and for the alleged offender to be legally represented.
Such a development within the criminal justice system would counter the risks identified by the “labelling theory”, reduce the probability of “trial by media” and would give victims a potentially stronger voice at a much earlier stage of the judicial process.
There is an irony for Paul Gambaccini that the person who he sees as the villain of his life is proposing changes that, if they had been in place at the time of his arrest, would have almost certainly protected him from the trauma and losses he has experienced while allowing him to continue working via an independent contractor in his role at the BBC.