June 20th, 2012

The protection of identities in the criminal process

Transparency in court cases is conducive to accountability. However, the provisions for discretionary and compulsory anonymity can sometimes serve a greater interest.

By Michael Hor

The recent media excitement over several criminal prosecutions involving a sexual element has created some discomfort in some quarters over how such cases should be handled in terms of protecting the identities of the people involved.

While it will be improper to talk about particular proceedings which have not yet been resolved with finality, it might be opportune to reflect on the broader tension at the heart of calls to expand the law and practice of identity protection.

First, a brief description of the law. There are general provisions vesting wide discretion in the trial court to enforce anonymity if there is “sufficient reason” to do so – section 7 of the Subordinate Courts Act is an example.

Specific to sexual offences, section 153 of the Women’s Charter prescribes compulsory anonymity where a female victim of a sexual offence is below 16 years of age. Where she is between 16 and 18, the court has discretion whether or not to conduct the trial in camera – where observers and journalists are excluded.

But in all proceedings concerning a sexual offence, and whatever the age of the complainant, and whether or not the trial is conducted in camera, there is a compulsory “gag” on the publication of material which might lead to the identification of the complainant. Section 153 of the Women’s Charter, it ought to be noted, applies only to specified sexual offences – essentially serious offences like rape, outrage of modesty and the like.

While these provisions do not technically bind the police from disclosing information before the trial, it stands to reason that in a situation where anonymity is compulsory, the police are under an obligation not to reveal information which might contradict the anonymity which would be enforced should the matter come to trial.

The difficulty here is with respect to discretionary anonymity – for the police might not be able to predict with certainty how a court would subsequently regard the matter. The fact remains that there are no clear rules which govern police disclosure or non-disclosure before a trial. Our law does not seem to contain a constitutional right to privacy which one might hold up against perceived wrongful or inappropriate disclosures by the police.

Questions have been raised about what is to happen to women who might be at least partial ‘victims’ of sexual aggression which does not fall within one of the offences listed in section 153 of the Women’s Charter. One can think of a situation where a female subordinate is blackmailed into ‘consensually’ having sex with her employer.

The offence of extortion (which now includes blackmail) is not listed in the Women’s Charter, and in such a case, the woman would not enjoy compulsory anonymity. It is possible to persuade a court to exercise its general discretion to confer anonymity, but there is no guarantee that a court will do so. One might then ask why section 153 should not be expanded to include situations like these.

Whether it is an issue of amending the statute to broaden its reach or a matter of discretion for the trial court to order anonymity, there is a fundamental clash of public interests which cannot be easily resolved.

From the viewpoint of preserving the integrity of the criminal process, there can be no doubt that the public interest is in upholding the principle of an open trial. Transparency and publicity is believed to be conducive to accountability, and serves the valuable function of allowing justice to be seen to be done. The point can be obliquely but effectively illustrated by the massive misgivings accompanied by use of the Internal Security Act.

Nonetheless, the provisions for discretionary and compulsory anonymity represent a governmental determination that in some situations we have to bear with the necessary evil of a closed trial in order to pursue a greater interest.

In the context of sexual offences specified in section 153 of the Women’s Charter, the overriding interest is in preserving the anonymity of the complainant. If her complaint is vindicated at trial, then anonymity would spare her the additional trauma of the whole world knowing that she has been a victim of a sexual offence. Even if it is not, there are still interests to be protected – her allegations may still be factually true, but the inherent uncertainties of a criminal trial meant that there was an acquittal.

More importantly, future genuine complainants may well be deterred from ever revealing the violence done to them if they have to contemplate the possibility that the prosecution might, for some reason, fail. This also explains why anonymity is preserved even if the accused is acquitted. The case for anonymity is only stronger in the case of younger complainants below the age of 16 – the requirement for them is not just a gag on publicity, but of trials in camera as well.

Returning to the issue of extending anonymity to our blackmailed ‘victim’, there is no clear-cut answer. There are trade-offs either way. One might reasonably feel that the case for anonymity for such a person, though weaker, perhaps because there is an element of consent, is nonetheless sufficiently strong to deserve protection.

Yet it must not be forgotten that every extension of anonymity made is at the same time an erosion of the principle of a public, and hence fair, trial. It is incumbent on all parties concerned to be cognizant of the costs involved in the ranking of the advantages of anonymity over those of publicity, and vice versa.

Some are also uneasy with the ‘one-sidedness’ of the anonymity provisions. Why, it is sometimes asked, is the same exception of anonymity not accorded to the accused person? One could imagine a system where the identity of those accused of a sexual offence is kept secret pending the outcome of the trial – if he is found guilty, then his name can be revealed; if not, it is to remain secret.

There is much to be said for this strategy of contingent anonymity. It is common experience that even those who are acquitted of a sexual offence might not be able to shake off the suspicion that they were in fact guilty but got off fortuitously. Such an exception to the principle of an open and public trial comes with a cost – not so much from the point of view of the accused, but from the perspective of public interest in an open criminal process.

There is also the problem of where to draw the line. Should the policy of contingent anonymity be only for sexual offences or for all other offences as well? Suspicions of guilt can linger even after an acquittal for corruption and charges of dishonesty, as for sexual allegations.

There are no easy answers. Any solution involves trading off one set of interests for another. That does not mean we should be stung into inaction, but into a careful appraisal of the profit and loss account, as it were, of each alternative strategy.

In my view, the long-term answer lies not in rules regarding anonymity but in public education. There is prejudice which irrationally surrounds victims of sexual offences. Victims are loath to have others know. The “logic” seems to be that there is some sort of shame associated with being the victim of a sexual offence. That of course is nonsense and those who continue to hold such a view ought to be educated otherwise.

The second is the seeming ambiguity that surrounds an acquittal. Not too long ago, some of the highest legal officials of the land seemed to have locked horns over its meaning. One view is that an acquittal does not mean that the accused person is necessarily innocent factually – for example, he or she might still be in fact guilty, but the prosecution was unable to amass proof beyond reasonable doubt. The other is that an acquittal means innocence in the eyes of the law, and nothing else.

There is an element of truth in both views. While an acquitted person may still be factually guilty of committing an offence, that fact cannot be used against him – and so we are to treat the acquitted person as we would one who was never charged. We sometimes cannot prevent feeling what we feel, but we can all chose to act in a principled manner, even when we don’t feel like it.

Unfortunately, both prejudices are deep and unlikely to be eradicated in the near future. This means that the reasons for protecting the identities of those involved in exceptional circumstances are likely to remain, and with it the need to continue to think about exactly what these circumstances should be.

The author is a Professor at the Faculty of Law, National University of Singapore, where he has taught and researched criminal law and processes for more than 20 years.

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