How do you balance the need to protect the reputation of those falsely accused of sexual offences against the need to ensure such crimes are uncovered? By Robin Murray

Anyone who believes that there is a straightforward answer to this question simply does not understand the question. Many Lawyers are conflicted on this. Recently acquitted of a further allegation the perhaps now ironically styled former ‘publicist’ Max Clifford said in court “I was found guilty [in 2014] ... I know I’m innocent. Hopefully one day I will be able to prove that. One of the things I’ve learned [from the last trial] is you’re guilty until proven innocent when sexual offences are involved.” The fact of his acquittal would tend to suggest this is an exaggeration as does the high level of acquittals in Rape trials.

Nevertheless what has not yet been resolved is the necessity for society to ensure a fair trial whilst encouraging victims to come forward.  Without question, had there not been media publicity given in say the case of broadcaster Stuart Hall some of his crimes would have remained hidden. Hall was charged in December 2012 over three counts of indecent assault. But after the publicity the case brought, more victims came forward and he was charged with further counts of indecent assault and one of raping a 22-year-old woman.  Kirsty Hughes, chief executive of Index on Censorship, said: “This case shows that the naming of people who have been arrested can be vital for open justice.”

I believe however there should be a major distinction between the ‘open Justice principles’ that the administration of justice must be done in public and separate issue of pre- charge publicity. The public and the media have the right to attend all court hearings and the media should be able to report those proceedings fully subject to strict rules to protect the trial process. But the trashing of peoples reputations in the press prior to trial is something many of us find disturbing conscious as we are of the presumption of innocence. The toll this can take on the innocent should be weighed in the balance against the obvious need for a free an independent press. One only has to look at the terrible impact upon the completely innocent Christopher Jefferies see the damage that can be done.

The Leveson Commission recommended pre charge identification only in certain situations.  These include situations where publication of a suspect’s or arrestee’s identity was genuinely and reasonably necessary to encourage other alleged victims or witnesses to co-operate with the police, where public safety was at risk or when publication might lead to the apprehension of a suspect at large or arrestee who has failed to answer to their bail.

However although I completely understand a prosecution viewpoint that pre-trial publicity may engender corroborative evidence that might support a prosecution or even charging decision, I feel the dangers of injustice are so severe that it should be carefully controlled even in the terms of the Leveson exceptions.

Firstly there should have to be demonstrated to a Judge (district or Circuit depending on venue) a probable evidentially supported prima facie case on at least one charge to show that there is a realistic case to answer.  That is not a particularly high evidential threshold but it is a bench mark that could be seen to be reasonable to reach before encouraging other potential victims to respond to publicity and come forward. It need not require a full trial hearing of the prosecution case but more in the nature of an interim application style of hearing such as a bad character or bail application.

Secondly there should be no pre-trial publicity at all without demonstrating to the Judge that there is reasonable cause to believe others victims might come forward.  For example where there is an allegation involving sexual offences by someone clearly in a position to abuse their status be they celebrity or Head teacher this could be put forward. That would not have applied to Mr Jeffery who would have been protected as there was no prima facie case and who was never charged. (another man Vincent Tabak was convicted)

My view is this interim court process would deal with sexual offences such as, for example that facing Hall or others where there was a case to answer.  I am sure that a Judge guided by suitable expanded Leveson type guidelines and common sense would authorise responsible press disclosure within appropriate limits. It would avoid a press free for all attempting to drive a Jury to a conclusion in a high profile case that they might not otherwise have arrived at. I would suggest the Judge making the order should specify that press coverage might have to contain a warning that an appeal for further information or witnesses did not imply guilt in the case before the court or other cases that might arise as a consequence.

So controlled press reporting, pre-conviction, could balance the need to reach out to other witnesses whilst protecting those presumed innocent from press excess prior to the trial. That might not placate Mr Clifford but his recent acquittal shows that under our excellent adversary system of justice properly directed Juries are able to coolly assess the evidence post charge and even post a prior conviction. 

Robin Murray

Legal Aid Lawyer of the Year Award Winner

Winner of Kent Law Society exceptional achievement award