How Should we Approach Sex Offences?

Last week some rather interesting remarks were made by a barrister. Barbara Hewson told online magazine Spiked that she thought the age of consent should be lowered to 13 to end the ‘persecution of old men’.

She also called for an end to the anonymity granted to complainants in sex cases and for a statute of limitations to prevent prosecutions after a substantial period of time has passed.

The NSPCC said the views were ‘outdated and ill-informed’. Hardwicke Chambers, from which Ms Hewson practises, released a statement dissociating itself from the comments. It said it was ‘shocked’ by the views expressed.

As expected, the views have been criticised widely by the public.

Now I certainly do not agree with the views of Ms Hewson. Having the age of consent set at 16 protects young and vulnerable individuals. And prosecutions should be possible however old an offence is, so long as a fair trial is possible.

However, Ms Hewson’s comments do at least focus attention on an area which needs to be addressed. The media coverage of the recent arrests of a number of high profile individuals will doubtlessly adversely and irreparably affect those individuals’ reputations, even if the investigations against them conclude without further action.

Is it right that individuals suffer the stigma attached to sexual offences when there is insufficient evidence against them to charge them, let alone convict them? In my view, it is not. It seems to me that, presently, society has somewhat abandoned the notion of innocent until proven guilty. There appears to be a perception that anyone linked with sexual offences is guilty and deserving of punishment. That view is not right in any progressive democratic society. An individual is innocent and should be free to conduct unimpeded their own business until the State can prove otherwise. Nevertheless, it is a view that society appears to have adopted. Accordingly the question arises of how we protect innocent individuals from the stigma attached to being accused of a sex offence.

The simple way would be to grant anonymity to individuals accused of sex crimes in the same way that complainants are granted anonymity. Under the Sexual Offences (Amendment) Act 1992 complainants are granted lifelong anonymity, even if their allegations do not lead to the conviction of another. I would not propose lifelong anonymity for suspects. But surely suspects should be granted anonymity at least until they are charged. In that way the reputations of suspects who are simply investigated are not marred by media attention. Arguably, anonymity should be granted until an individual is proven to be guilty and is convicted. Suspects were previously granted anonymity in the Sexual Offences Act 1976, but this was reversed in 1988.

The only conceivable concern about such a scheme is that it could prevent other alleged victims coming forward to report crimes also allegedly committed by the suspect. The Jimmy Savile case is a good example. Many victims only came forward once he had been publicly linked to sex crimes. Anonymity might have prevented this. However, in my view it would be preferable to protect innocent individuals until they are convicted and direct attention at encouraging the reporting of sex crimes. If victims felt confident to report crimes immediately the above concern about granting anonymity to suspects would not exist.

Ms Hewson’s comments might well have been extreme, but they at least focus attention on a subject that desperately needs attention.

What are your thoughts? Should we grant anonymity to suspects?

Jimmy Savile: Declaring Guilt

Today a report authored by the Metropolitan Police and the NSPCC has been released, detailing the years of abuse by Jimmy Savile. The report, ‘Giving Victims a Voice’, documents a pattern of offending that is likely to have spanned 50 years, possible because Savile ‘was hiding in plain sight’. It explains that 450 people came forward with information relating to Savile leading to, currently, 214 formally recorded crimes that were committed at locations including the BBC, hospitals and schools.

What is interesting about the report is its declaration that because the complainants' (who mostly are not known to one another) accounts ‘paint a compelling picture of widespread sexual abuse by a predatory sexual offender’ they are referred to as ‘victims’ and their evidence is not being treated as unproven allegations. Presumably, therefore, their evidence is being treated as proven. Essentially then, the authors of the report seem to be saying that although a criminal prosecution is impossible as the suspect is now deceased, we can nevertheless be sure that he was guilty of a number of crimes. I personally find this conclusion concerning. We only declare a person guilty of a crime following a trial of the evidence, when we are sure that the person is guilty. At such a trial the defendant is represented, evidence is challenged and various safeguards are in place, such as restrictions on the type of evidence which can be used. That is what makes the process of finding somebody guilty fair. As Savile is dead he cannot challenge the evidence against him. We cannot have a trial of the evidence and cannot therefore be sure of his guilt. That is not to say that I believe him to be innocent. It seems to me from all that has been reported that there is a very high probability that Savile was guilty of a number of appalling crimes. But there is a huge difference between declaring something highly probable and declaring something proven. In a democratic society we can only declare criminal conduct proven following a trial of evidence. As this has not been possible in this case I do not believe it is correct to treat the allegations as proven.

This raises the question of how we should deal with criminal allegations against a person who has died. One way of course is, as here, to have an investigation and then a report setting out its findings. But such a report should not declare guilt in the same way that a criminal trial can. The problem with this method is that supporters of the deceased may feel that there has been an injustice to the deceased as there has been no examination of the evidence that is available. An alternative way, therefore, could be to introduce law allowing for a new posthumous trial procedure. Such a procedure could involve the appointment of an advocate to represent the interests of the deceased and then an examination of the evidence. Of course, we could never be sure of guilt as there would often be much evidence that only the deceased could give. But we may be able to say that there is a high probability of guilt. Accordingly, such a procedure could allow us to find a person innocent or make a ‘declaration of probable guilt’ in relation to them. At least in this way we attempt to assess the evidence in the way that we do at a traditional trial and equally balance the interests of both any alleged victims and the deceased and their supporters.

I imagine that the type of procedure described above is unlikely to ever exist. But surely we need an alternative way of dealing with such cases; can it ever really be acceptable to declare criminal allegations proven without a trial? What are your thoughts?

The report is available here: http://www.nspcc.org.uk/news-and-views/our-news/child-protection-news/13-01-11-yewtree-report/yewtree-report-pdf_wdf93652.pdf