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PDF/Stern Review Acc FINAL.Pdf> Accessed 25Th January 2010, 12 Durham E-Theses The role of human rights in determining whether complainants of a sexual oence and/or defendants charged with an oence under the Sexual Oences Act 2003 should receive anonymity Taylor, Laura How to cite: Taylor, Laura (2014) The role of human rights in determining whether complainants of a sexual oence and/or defendants charged with an oence under the Sexual Oences Act 2003 should receive anonymity, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/9477/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 1 The role of human rights in determining whether complainants of a sexual offence and/or defendants charged with an offence under the Sexual Offences Act 2003 should receive anonymity By Laura Emily Taylor ABSTRACT A 2010 proposal to extend anonymity in rape cases to rape defendants underlined the continuation of a long running, highly politicised debate, centred on whether one or both parties in a rape case should receive anonymity. This research addresses the question of rape case anonymity from a human rights perspective with a rephrasing of the popular arguments enabling a better understanding of where the correct balance should lie. The specific rights addressed are those arising in the context of rape proceedings. Firstly, Article 3, the right not to be subjected to torture, inhuman or degrading treatment. Analysis concludes that withholding anonymity would not violate the Article 3 right of either party in a rape case. Secondly, Article 8, the right to privacy and a family life. Discussions demonstrate that rape complainants require blanket anonymity to uphold their right to privacy and as an exception to open justice. Rape defendants do not require anonymity to protect their Article 8 rights. Thirdly, Article 10, the right to freedom of expression and how it balances against a rape defendant’s Article 6 right to a fair trial. Discussions show that Article 10 will outweigh Article 6 in these circumstances, especially since the media’s right to freedom of expression facilitates open justice, and thus a fair trial. Fourthly, the complementary Article 14, the right not to be discriminated against. Analysis concludes that rape complainants, but not rape defendants as a group, face discrimination and thus require blanket anonymity to uphold their Article 14 rights. In conclusion, rape complainants should continue to have anonymity whilst rape defendants should not be afforded it. A rape complainant’s Article 8 and 14 human rights are highly likely to be violated without anonymity. Lack of anonymity would not breach any corresponding human rights of a rape defendant. 2 The role of human rights in determining whether complainants of a sexual offence and/or defendants charged with an offence under the Sexual Offences Act 2003 should receive anonymity By Laura Emily Taylor Master of Jurisprudence (M.Jur) Law Department, Durham University 2013 3 TABLE OF CONTENTS Abstract 1 Title page 2 Table of contents 3 List of abbreviations 7 Acknowledgements 8 Statement of copyright 9 Chapter 1. Introduction 10 1.1 Anonymity: the popular debate 10 1.2 Why address anonymity in rape cases from a human rights perspective? 14 Chapter 2. History and the law: why the need for anonymity? 18 2.1 The anonymity timeline 18 2.1.1 DPP v Morgan 1975 18 2.1.2 The Helibron Report 20 2.1.3 The Sexual Offences (Amendment) Act 1976 22 2.1.4 Fifteenth Report of the Criminal Law Revision Committee, 23 on Sexual Offences, April 1984 2.1.5 The Criminal Justice Act 1988 25 2.1.6 The Austen Donnellan acquittal 26 2.1.7 Criminal Justice and Public Order Act 1994 30 2.1.8 Crime and Disorder Bill 1998 32 2.1.9 Youth Justice and Criminal Evidence Bill 1999 35 2.1.10 Youth Justice and Criminal Evidence Act 1999 40 2.1.11 Proposed Amendment to the Sexual Offence Bill 2003 42 by Lord Ackner 2.1.12 Select Committee on Home Affairs Fifth Report, June 2003 44 2.1.13 The Sexual Offences Act 2003 47 2.1.14 The Independent Stern Report: A report of how rape 48 complainants are handled by public authorities in England and Wales 2.1.15 The Coalition Government proposed to extend anonymity in 50 4 rape cases, May 2010 2.2 Rape anonymity: the arguments examined 51 2.2.1 Complainant Anonymity 51 2.2.2 Rape as violence and male power 53 2.2.3 Rape myths 54 2.2.3.1 The real rape scenario 55 2.2.3.2 All women secretly want to be raped 60 2.2.3.3 Women commonly make false allegations 60 2.2.4 Defendant anonymity 63 2.2.4.1 Rape is more severe than other crimes 63 2.2.4.2 Equality with rape complainants 64 2.2.4.3 Innocent Until Proven Guilty 65 2.3 The ‘need’ for anonymity: justifying a circumvention of the principle 66 of open justice. Chapter 3. Article 3 Rights and anonymity 69 3.1 Introduction 69 3.2 The distinct components of Article 3 71 3.2.1 Torture 73 3.2.2 Inhuman 75 3.2.3 Degrading treatment 76 3.3 The complainant’s Article 3 human rights 77 3.4 The rape defendant’s Article 3 human rights 81 3.5. Conclusion 85 Chapter 4. The right to a private and a family life: questioning anonymity provisions and Article 8 87 4.1 Introduction 87 4.2 Defining the right to a private and family life 89 4.3 Stage one: Is the information private? 91 4.3.1 The obligations upon a state in relation to the Article 8 human 93 rights of its citizens 4.4 Stage two: Limiting Article 8 human rights under Article 8(2) 94 4.4.1 Interference must be in accordance with the law and necessary 95 5 in a democratic society. 4.4.1.1 Open justice and the rape defendant’s right to 97 privacy 4.4.1.2 Open justice and the rape complainant’s right to 100 privacy 4.4.2 The Article 8 limitation must be necessary to protect the 102 rights and freedoms of others 4.4.2.1. Rape complainants, rape defendants and the 109 balance of Articles 8 and 10 4.5 Stage 3: The margin of appreciation 112 4.6 Conclusion 113 Chapter 5. The right to freedom of expression: questioning anonymity 115 provisions and Article 10 5.1 Introduction 115 5.2 Defining freedom of expression 118 5.2.1 Explaining the ambit of Article 10 (1) 119 5.2.2 The special position of the media in relation to article 10 121 and the margin of appreciation 5.2.3 The limits set by Article 10(2) 124 5.2.3.1 ‘Prescribed by law’ 125 5.2.3.2 The restriction is necessary in a democratic society 127 5.2.3.3 The right to freedom of information and the right to 130 a fair trial, a balancing act 5.3 Conclusion 133 Chapter 6. Article 14 135 6.1 Introduction 135 6.2 The scope of Article 14 and its interaction with other rights 135 6.3 The limits of Article 14 137 6.3.1 A provision without ‘bite’ 137 6.3.2 The margin of appreciation 139 6.3.3 A provision of limited utility? 140 6.4 Substantive equality, Article 14 and its impact on the anonymity debate 141 6 6.5 Conclusion 142 Chapter 7. Final conclusions 143 Table of cases 150 Table of legislation 155 Bibliography 155 7 LIST OF ABBREVIATIONS CDB - Crime and Disorder Bill CJA - Criminal Justice Act CJPOA - Criminal Justice and Public Order Act CJS - Criminal Justice System CLRC - Criminal Law Revision Committee CPS - Crown Prosecution Service ECC - Editors Code of Conduct ECHR - European Convention on Human Rights ECtHR - European Court of Human Rights GBH - Grievous Bodily Harm HC - House of Commons HL - House of Lords HRA -Human Rights Act LJ - Lord Justice MoJ - Ministry of Justice MP - Member of Parliament MP’s - Members of Parliament POA - Public Order Act SOA - Sexual Offences Act SOAA - Sexual Offences (Amendment) Act SOB - Sexual Offences Bill YJCEA - Youth Justice and Criminal Evidence Act YJCEB - Youth Justice and Criminal Evidence Bill 8 ACKNOWLEDGEMENTS I would like to thank my primary supervisor, Professor Clare McGlynn and my secondary supervisor Neil Cobb for all of their kind help and support whilst I undertook this research and completed my thesis. 9 STATEMENT OF COPYRIGHT The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged. 10 Chapter 1 Introduction The legal system within the UK is founded upon the principle of open justice.1 This principle ensures that in all but exceptional circumstances, legal proceedings are conducted in an open arena and that individuals involved in a specific case are publically identifiable.
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