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Guilty Until Proven Innocent: The Anonymity of Celebrity Defendants in Sexual Abuse Cases

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16 September, 2013
Criminal Law, Jessica Randell, Media Law
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Michael Le Vell (Image source: http://www.itv.com/news/granada/update/2013-09-02/coronation-street-actor-michael-le-vell-arrives-at-manchester-crown-court-to-face-trial-for-a-series-of-child-sex-offences/)

– Jessica Randell (LLB Law, Newcastle University) j.m.randell@ncl.ac.uk

In England and Wales a suspect in criminal law is supposedly innocent until proven guilty. This has been emphasised by the introduction of this right in the European Convention of Human Rights and Fundamental Freedoms (ECHR), article 6(2), as incorporated into domestic law by the Human Rights Act 1998. However, in practice, this process rarely occurs. With details of accusations, the trial and personal details regarding the suspect banded about in the media, both social and otherwise, it is less of a reality and more of an ideal. This is becoming more and more prevalent in the wake of the so-called ‘celebrity witch-hunt,’ particularly regarding allegations of sexual offences against children with famous celebrities in the dock. These include, but are by no means limited to; the children’s entertainer Jimmy Savile, Coronation Street actor Michael Le Vell and presenter Stuart Hall.

Both prior to and during the ‘celebrity’ trials that have been seen so far the media have been publishing intimate details about the alleged offences yet they are refusing to anonymise the name of the accused. Whether this is the right thing to do has divided the public but this is far from a new debate and it is, most definitely, not something that has gone unquestioned in the past. In the Sexual Offences (Amendment) Act 1976, for example, rape suspects were granted anonymity but this was later removed as it was deemed unjustified that those accused of rape should be distinguished from other criminal defendants. The complainant, on the other hand, retained their right not to be named and this too is criticised. It has even been questioned by our current coalition government as to whether this aspect of our judicial system needs changing but they too have decided to leave it untouched. Many questions arise from this. Is it fair? Should it be changed? And what are the alternatives?

A false accusation of a sexual offence can, as with most areas of law, destroy an individual’s privacy, relationships and livelihood; this much is acknowledged. Many will claim that the revealing of the defendant’s real name during a trial should be kept under wraps until a guilty verdict is reached. It is submitted that this should not occur. Our judicial system boasts about its unique approach to open justice; this allows for the monitoring of the inner workings of the system, to account for fair and accurate recordings of trials, to deter potential wrong-doers, to satisfy complainants who may need their ‘day in court’ and to generally uphold democracy. In accordance with this an open court allows for trials to be accessed by the public and the press alike and means that cases can be freely and openly reported on in the interest of the right to freedom of speech (see article 10, ECHR). Some may argue that allowing such reporting is an example of the right to free speech trumping an individual’s right to respect for their privacy (see article 8, ECHR). However, as with all collisions of these two fundamental freedoms; one will always prevail. This occurs despite their equal weighting as it is judged in light of a balancing exercise, where one will always outweigh the other, which is based on several factors; not least including those listed above.

Using the example of actor Michael Le Vell, who was recently cleared of twelve counts of sexual abuse against a child, including five counts of rape, he has suffered several personal setbacks as a result of the trial. He was suspended from his work as an actor on the soap Coronation Street for seven months prior to this verdict and his private life has been monumentally thrust into the public domain. This included releasing evidence regarding his alcoholism, extra-marital affairs and intimate details regarding his sex life. Some argue that this should never have been allowed in that it will discolour the public’s opinion of him. Furthermore, that it means we are no longer adhering to the right to remain innocent until the prosecution can prove the defendant’s guilt beyond reasonable doubt; the standard of proof in England and Wales. There is also the argument that such false accusations will not be removed from all media forms as, for example, it will remain only a simple search away in any internet search-engine. Such would only further bring these accusations to light either at the moment or at any time succeeding these events; meaning the actor is affected both now and in the future.

Despite these criticisms, pertaining specifically to celebrities, allowing for the anonymity of such defendants would incur several difficulties. These would include; determining the difference in treatment between celebrities and non-celebrities, how to distinguish between who is famous and who is not, the impact of social media exposure of personal details of those involved and the prevention of providing a publicised channel through which to encourage other complainants to come forward. The negative consequences for the innocently accused are recognised as being rife in such high profile cases; but why should the maintaining of a celebrity’s career and personal life surpass that of the average defendant?

An alternative, as has been advocated by the public, is to prevent the publication of any defendant’s details in such sexual abuse cases, whether the defendant is famous or not. This is surely unworkable in a system such as ours; what would happen to the free speech of those working in the media? How would we justify anonymising defendants in just one area of law? Would potential complainants feel this means there is perceived to be a larger number of false accusations in this particular area and how would this affect those scared to come forward?

If this was a feasible option it seems that the anonymity of rape defendants would never have been abolished, as it was, in 1988. It would have remained and simply been extended to cover all defendants in sexual abuse cases or, further, all criminal defendants. However, would it stop at just the name of the defendant being anonymised or would this extend to details of this case being kept secret? Surely it would become obvious to some people who the case concerned if all details were released bar a name? Regardless of it being a name or all details of a case only released upon a guilty verdict, with an appellate system such as ours, it would be extremely impracticable. If, for example, a defendant was found to be innocent at trial but later found guilty, upon travelling along the multiplicity of avenues awarded by our sought-after judicial system, what then occurs? If personal details were then to be released, would this include details from the very beginning of the case or limited to that appellate stage? What if the decision was then reversed again? Would this mean releasing details of a defendant only when it reaches the final stage in our system – ultimately this would be at the Supreme Court – or would this be extended to the European Court of Human Rights? If all of these questions were answered and it was deemed appropriate only to release information at the final stage of the case then further issues arise; in so far as how are students, academics and practitioners alike expected to apply and analyse the law without tracking its development as it occurs? A lack of legal certainty would no doubt ensue as there would be no indication as to how the law stood leading up to a final decision and how it could, potentially, be developed in the future.

There are alternative ways in which to adjust the system which do not involve anonymising the name of the defendant or, further, details of the trial until a guilty verdict is reached; but these too appear unlikely. They include setting a time limit on all online articles with an expiration date for them to delete themselves after the conclusion of the trial; hopefully mirroring the memory of the average reader. This would mean that information cannot be accessed in the future regarding innocent defendants. Arguably, if it is not on an individual’s criminal record then it should not be accessible on the internet. Alternatively, we could anonymise the name of the individual in any media form; leaving them only to be mentioned in the trial and in the judgement. It seems this would require some form of an injunction but appears unlikely, particularly in light of being able to post anonymously on social media websites or instead posting under your real name, along with thousands of others, with the comforting thought that it is unlikely all will be prosecuted. Finally, an update or editorial note could be added to anything published electronically or in future hard copies of newspapers, for example. This seems most likely but would not deter from the publishing of information as a trial is on-going.

These potential options would, most likely, still not be deemed appropriate by those keen to protect every aspect of the defendant’s private life. None of them offer ultimate protection for the innocent party nor do they solve the issue of unfairness in so far as the claimant remains anonymous but the defendant does not. It appears that what is desired is an all or nothing approach; all parties are named or none at all. However, it must be remembered that it is not just the falsely accused who has to endure a trial; the complainant too has to undergo fierce cross-examination, speculation and then the aftermath. The complainant may not be publically named but, post-trial, has to deal with either their abuser being acquitted or having to deal with the consequences of falsely accusing an innocent person. Some may argue any such consequences are deserved, some may not. Either way it will be the innocent party, not the complainant, who will have media reports documenting their innocence which, in any search engine or in any hard copy of a newspaper, will be the most recent news on the accusations. Le Vell, for example, has already been invited back to work and has had a barrage of support from friends, family and now the repenting press. In direct conjunction, the complainant will always have to live with the knowledge of the destruction their false accusations have, or could have, caused.

The press claim that there is a public interest in celebrities and their potential criminal activity and that justice must be seen to be done; thus celebrities do not escape media speculation surrounding legal action. It is accepted that the publicity surrounding a celebrity trial is extensive and may far out-strip that of the average defendant but, it is submitted, that a defence of public interest should exist as a means of justification for publically documenting a criminal trial. That public interest should not be in the individual as a celebrity but in that individual as a role model who has supposedly committed criminal acts.  This public interest defence is not, therefore, in existence to discover sordid details about an actor’s sex life, for example, but rather to unearth the truth about accusations that have been made against them. Once acquitted, however, the falsely accused should be able to return to their normal life as best facilitated by those around them; family, friends, employers and supporters.

One will note that more questions are being asked than answered in this blog but that in itself only further evidences that this is not a cut and dry issue as purported by the public. It is all well and good to criticise our legal system but when no workable example can be proposed, that satisfies the complaints being made, it is submitted that it is clear that we are where we are for a reason. Media speculation may well make an individual defendant feel they are not being treated as innocent until proven guilty; but it must be remembered that speculation is exactly what it is. The jury are the keepers of the (prison) keys and only they will decide a verdict based on all the evidence put before them at trial; they are reminded of their duties to be independent by the Judge and are given the opportunity to relinquish those duties at the beginning of the trial. The media may seek to damage a celebrity’s reputation but it is up to the reader to make an educated opinion of the accused based upon the verdict given at trial. Only if a negative opinion of the defendant is formed prior to the verdict will the accused be guilty until proven innocent; and, after all, if they are indeed innocent then the truth will ultimately prevail.

Internet Era: Privacy in Exchange to Safety?

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2 September, 2013
Anamaria-Mitina Mihaita, Media Law
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Internet Privacy

(Image source: http://www.huffingtonpost.com/larry-keating/internet-data-privacy_b_2562196.html)

– Anamaria-Mitina Mihaita (LLB Law, Newcastle University) mihaita_ana@yahoo.com

Nowadays technology has become an important part of people’s lives. Activities such as banking, shopping and even human interactions depend more and more on the internet. Within virtual life, individuals’ rights and freedoms also become a virtual issue. Whilst the breach of virtual rights is not a primary issue for users, discussions about virtual privacy have gained weight after the USA spying scandal.

I am told that I am free but my freedom stops when someone else’s freedom starts. The principle of real life freedom seems clear, but when it comes to the internet the term becomes blurred. The main reason for this is the difficulty of drawing virtual boundaries on a free and open platform. New legislation and a detailed technological scheme are needed to ensure our right to keep private anything inside our virtual boundaries. This solution may, however, not be accepted by internet users as it includes costly infrastructure changes which may turn the internet into a limited payable platform. As a result of this, most users simply accept the government’s explanation that internet surveillance is necessary to protect ‘good citizens’ against terrorists. Good intentions and patriotism are mentioned everywhere to explain the privacy infringement taking place online. Once boosted, the government uses peoples’ deepest fears to justify itself and the extreme decisions it has taken. When in fact, the questions that each and every citizen should be asking are: ‘should we trade our privacy in exchange for safety? and is the system sufficiently designed  to avoid abuse?

In response, the authorities have calmly stated that if you do not want something online, do not put it there. This is both logical and impossible at the same time. Nowadays, almost everything is monitored and done online, from banking transactions, to communication. Thus leaving it difficult for individuals to step out of the culture they grew up in and have grown accustomed to as the ‘real world’. Therefore it is submitted that the government’s response seems to be more of a fictional solution than a palpable one. The question remains what options do we have left? Trusting a system that has spied on us for decades without any previous notice does not seem a good option. Although intentions are good in nature, popular sayings note that the way to hell is full of good intentions. In a system where politics plays the most important role in security, the approach taken within the system could change at any moment. Jennifer Granick interestingly mentioned that the fear triggered by this scandal lays on the possibility of “bored analysts [who] do things like spy on women using surveillance cameras and listen to American GIs overseas having phone sex with their loved ones back home. Or an FBI agent may investigate strange but not unlawful emails on behalf of a family friend, leading to a sex scandal that brings down the Director of the CIA. These surveillance tools and information databases may one day end up in the hands of a J. Edgar Hoover and a President demanding embarrassing information about her political opponents, information that, in an age of mass surveillance, the government most assuredly will have somewhere in its treasure trove.”

To conclude, the solution to this situation is not an easy one. In order to protect internet privacy, users and internet suppliers have to request real boundaries on surveillance. However, the effect of these requests may come at a cost.  The ‘price of virtual privacy’ may indeed result in a charge from internet suppliers or an independent controlling body  to ensure that private information remains private if no suspicion is in place.

We shale keep using fossil fuels!

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3 July, 2013
Catherine Caine, Environmental Law
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unsplash_52af24879b3cb_1– Catherine Caine (LLM Environmental Law and Policy, Newcastle University) c.a.caine@newcastle.ac.uk

Last week brought both the news that the UK’s shale gas reserves are greater than expected and the fact that the UK is not on track to hit its climate change targets through the 2020s. It has been argued that whilst shale gas is cleaner than coal, it is still a fossil fuel and will not help the UK towards meeting its climate targets within the European Union. Under the Climate Change Act 2008, the UK is committed to ensuring that the net UK emissions of carbon dioxide are 80% lower in the year of 2050, than they were in 1990. In addition to this, the UK is also required to increase its renewable energy production to fifteen percent by 2020 under the 2009 European Directive on the promotion of the use of energy from renewable sources. However, despite these targets, the coalition government remains undeterred from its march towards the exploitation of shale gas.

It is believed that there is as much as 1,300 trillion cubic feet of shale gas expected at the Bowland site in Lancashire. Shale gas is extracted using the controversial process of fracking. Fracking is the process whereby rock is fractured using high pressure jets of water in order to gain access to the trapped gas within. The process is big in America where it has brought down energy prices, and ensured that America can use its own resources instead of importing from other states. Conversely, in the UK, the process was banned in 2011 after exploration in the Blackpool area led to earth tremors. This ban has now been lifted, as theories concerning earth tremors have been dispelled. However, the concern of tremors has been replaced with a new fear of water contamination caused by the chemicals and sand that are blasted into the rocks deep below the earth.

Lawrence Carter from Greenpeace claims that “the idea that shale gas is going to get the economy moving again is groundless” and Friends of the Earth campaigner Tony Bosworth believes that “shale gas is not the solution to the UK’s energy challenges. Its potential has been hugely over-hyped and there’s little evidence it will drive down fuel prices.” Whether you love or hate shale gas, the Coalition Government is determined to push through with plans. With at least £100,000 in benefits on offer to each Community that decides to exploit shale gas, along with 1 per cent of the overall revenues – the offer is certainly tempting. Nevertheless the question remains: will financial encouragement be enough to entice Communities to get involved with the scheme?

Shale gas wells require permits from the Environment Agency, and the Department for Energy and Climate Change, as well as permission from health and safety officials before they can be built. Despite the long list of permissions required, it has been argued that the largest obstacle facing shale gas exploitation is support from local authorities. The Chief Executive of the UK Onshore Operators Group, Ken Cronin, believes that planning is the “most difficult part” for firms wanting to explore shale gas.  He argues that shale gas exploitation is not a new venture as we have been drilling wells for oil and gas for a considerable amount of time in the UK. Nonetheless, with the additional publicity that shale gas has received concerning Earth tremors, and water pollution, local authorities will be left with a decision to take the financial gain and face the consequences, or to play it safe and risk being left behind.

Only the test of time will tell how many local authorities give consent to shale gas exploitation in their area, however with constant threats that the monies raised will not necessary benefit local communities – it is far from certain whether shale gas will be able to provide an adequate solution to our energy problems.

Defamation Act 2013: Free Speech or Reputation?

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25 June, 2013
Anamaria-Mitina Mihaita, Media Law
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– Anamaria-Mitina Mihaita (LLB Law, Newcastle University) mihaita_ana@yahoo.com

The Defamation Act 2013 has been expected with interest, as the law of defamation before the Act was uncertain and unfair. In addition, the recommendations in the Leveson Report added further concern about the enactment of a law which would bind the press and, consequently, sacrifice freedom of expression in a democratic society. After the Leveson Inquiry, the press was threatened to be imposed with heavy regulations and harsh controlling measures. However, the Defamation Act 2013 turns out to be a useful tool to create a fair balance between freedom of expression and the right to a good reputation. The 2013 Act is still under discussion and the reason is straightforward. In defamation law, decisions are never easy as judges have to make a ‘tragic choice between right and right’. In some cases, it can appear to be subjective or even arbitrary. For this reason, a strong and clear basis is needed. In light of this, it is beyond doubt that the act is a desirable development of the law.

The law before the 2013 Act was archaic and unbalanced, which resulted in chilling effects and the oppression of legitimate debate. This is the result of years of lopsided law in favour of the right to a good reputation. As a result of this, the case law in this area has become an obstacle for judges who want to shift the balance. A concrete example is the case of Reynolds v Times Newspapers Ltd where the courts tried to expand the protection of freedom of expression. However, judges found themselves constrained by the antique law and precedent. Consequently, judges’ desire to modernise the law by stretching the meaning of the words lead to a mistaken association of modern ideas such as ‘freedom of expression’, ‘public interest’ and the archaic idea of ‘privilege’. Despite the difficulties encountered, Reynolds v Times Newspapers Ltd was in fact a step towards the creation of a fair balance.

The law was in need of a statutory reform in order to achieve the balance our century requires. Therefore, as Lord McNally suggested, the Defamation Act 2013 brought the tort of defamation into the 21st century, creating a more balanced and fair law. This has been achieved by the introduction of new statutory defences and the abolition of old ones. An example of this is the substitution of the defence of fair comment by the defences of honest opinion and scientific publications. This new law offers a more specific protection to scientists as it has been long requested. It is a desirable situation because science publications are more theory-based than fact-based. Moreover, the abolition of the jury unless judges request it, the clarification of the first publication rule and the protection of website operators are just few examples that prove a desirable modernisation of the law. Although controversial, the former measure is meant to remove any type of sympathy-winning cases. It is an attempt to put justice in the most neutral hands. Overall, the changes brought by the 2013 Act have been created to add certainty without destroying flexibility. The original position of the English law with regards to defamation has definitively changed. However, the 2013 Act does not impose a sudden and unexpected change, but it codifies an on-going modernisation of the law.

The Act has not escaped criticism. Timothy Pinto thinks that the new act of defamation is a ‘boost for free speech’. He supports the idea that the UK’s Defamation Act 2013 will likely benefit the media, intermediaries, and scientific and academic publishers. Under the new law, he claims, companies are likely to find it difficult to succeed if they have been defamed. Moreover, he wrote that the act is ‘a boost for free speech’ because of the new requirement of proving harm and the numerous statutory defences. These changes, in his view, will work against the claimant and against the right to a good reputation. Pinto’s expectations of the Act are, in fact, too high and unrealistic. The utopian idea that an Act could address any possible scenario and could create a real balance on paper is unhealthy and impossible. Even if a perfect balance could be created in theory, its application lays in the hands of judges. For this very reason, the Defamation Act 2013 modernises the law by imposing statutory solutions but also by leaving the text open to interpretation. The 2013 Act recognises the importance of the judiciary’s discretion in the implementation of the law on a case-by-case basis. Pinto is, however, not alone in this view. Sarah Lyall believes that the act is a danger for the right to a good reputation. The new public interest defence, in her view, allows defendants to publish defamatory statements and avoid liability proving that the statements were believed to be in the public interest. However, Lyall does not take into account the judiciary intervention. To my mind, the 2013 Act provides a good basis for the tort of defamation. The defence of public interest does nothing else but introduce a subjective and more malleable defence. This new approach is necessary in a society where events are subjective, unclear and in continuum change. In light of this, Simon Singh’s statement that “now [there is] legislation which will change the landscape of free speech in Britain”, appears to be the overall feeling among publishers.

In conclusion, pursuing the perfect law is a naïve scope which ignores the human factor. The Defamation Act 2013 is an important piece of legislation which fills the gaps of the old law and provides a modern basis for further developments. Whether the Act will work in favour of freedom of expression, or in favour of a fair balance is yet to be seen within the case law.

A Critique of Justice Scalia

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20 June, 2013
Constitutional Law, Thomas Gordon
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Antonin_Scalia2(Source: http://www.supremecourt.gov/about/members.aspx)

– Thomas Gordon (LLB Law, Newcastle University) twgordon91@gmail.com

‘To look for the original meaning, or not to look for the original meaning?’ That is the question on literally a few people’s lips. That the US Constitution is ‘living’ is a fact. Judicial interpretations of laws such as the Commerce Clause have changed over the past 200 years, and continue to do so. Whether or not ‘Originalism’ should be preferred is merely an academic debate. Even the supposedly originalist judge Justice Scalia does not absolutely prioritise original meaning when stare decisis makes it impractical to do so.

Indeed, the ‘Living Constitution vs Originalism’ debate is a smoke screen for the highly political impulses lying beneath such rhetoric. Take, for example, the above mentioned Justice Scalia in Lawrence v Texas. In this case, the majority declared a state law banning sodomy between consenting homosexuals to be unconstitutional. Dissenting, Scalia used reasoning based upon the ‘rational basis’ approach found in substantive due process jurisprudence. He therefore implicitly accepted a line of jurisprudence arising NOT from Constitutional text, but a theorising footnote from Carolene Products. Presumably ‘stare decisis’ was the reason behind this.

However, the same judge is all too ready to let the world-and-his-wife know about how he would overturn Roe v Wade. The time difference between Roe and Carolene Products, if stare decisis is a great concern, is 35 years (a small proportion in the, admittedly young, life of the United States). There have been other major cases paying lip service to Roe as well (most notably Casey). Its international fame and judicial acceptance means that Roe is one of the most embedded decisions in US Constitutional law.

Why is there a difference in approach between the two cases?

The clear answer is personal politics. Scalia’s opinions favour socially conservative results. This would be acceptable if a defensible method were consistently used to reach them. However, he does not do this. Scalia criticises Roe by saying that the right protected in that case is not found in the Constitution, but dissented in Lawrence using a form of reasoning that is judicially invented.

What is even more ugly, beneath the attractive velour of originalist rhetoric, is that he is a judge showing a level of self-belief that is actually destructive of the republican philosophy he supposedly supports. Republicanism is an approach to governance where ultimate power rests with the people. The democratic legitimacy theory behind Originalism, that the government should only have the powers that the public thought they were giving it when they voted upon the Constitution, is therefore rested in republicanism. However, Scalia is too ready to ignore the powers that people currently think should lie with central government. The fact that Roe has not been overruled by Constitutional Amendment shows a level of acceptance by the American public that ought to be respected.

Additionally, he is incredibly ready to support invented legal categorisations, as he did in the ‘Obamacare’ decision Sebelius in relation to the Commerce Clause, to strike down a President’s signature piece of legislation. This hardly shows a willingness to respect the idea of a social contract between the governed and the governing that he would sometimes like people to believe.

A judge that did show a willingness to respect the democratic process was Justice Jackson. Two of his key decisions – Steel Seizure Case and Wickard v Filburn, allowed current politics to decide upon the constitutionality of federal action. This approach is preferable to Scalia’s legalistic methods. This is because when a case reaches the Supreme Court, the federal level of government is determining the Constitution’s meaning. However, it is the only branch of the Federal Government that is not elected by the public. Therefore, where federal legislation appears to be Constitutional (as the Obamacare legislation appeared to be acceptable under the Commerce Clause), the nuanced debate over the extent of governmental power should rest with the elected branches’ wishes, as Justice Jackson recognised in both of the mentioned cases. Moreover, Justice Scalia does not have a defensible method that he remains loyal to. He is unpredictable, and ultimately is willing to usurp elected decision making for his own personal preferences. His stated desire (to prioritise self governance as a value) is better served by a more lenient Jacksonesque approach than the one he currently takes.