Should rape suspects be named before charge?

A commentator says yes. Courts say no

Don’t voters have the right to know the name of a Conservative MP accused of rape, asks Tim Shipman in an opinion column for today’s Sunday Times.

A news story in the same edition tells us that the MP will be free to return to the Commons next month. “His bail to return on a date has been extended to early November 2020,” the Metropolitan Police are quoted as saying.

Although the police said two weeks ago that the suspect had been arrested and released on bail, there appear to have been no conditions attached. So there is nothing to stop him returning to the Commons.

Except that Shipman is concerned that “he will be sharing the corridors with young researchers and assistants, some of whom will have no idea about the accusations against him”.

The implication is that he must — or, at least, may — be guilty and these people will be at risk from him. That implication is given added weight by Shipman’s prominent references to Charlie Elphicke, a former Conservative MP who denied sexual assault but was convicted last month.

Elphicke was first suspended by his party in November 2017. The decision to withdraw the Conservative whip was then made public, with Elphicke insisting he was “not aware of what the alleged claims are”. He was not charged until July 2019.

If Elphicke could be identified in 2017, why can’t this MP be named now? What has changed?

One difference is that this MP has not had the whip withdrawn. But suspending him from the party would inevitably identify him, something party officials as well as journalists are clearly reluctant to do. The real question is why he has not been identified.

Shipman’s answer is that:

MPs and their supporters hide behind privacy legislation that was ushered in after Sir Cliff Richard’s home was raided on false claims of paedophilia.

I know of no privacy legislation, as such, that was passed by parliament after 2014 — and Shipman doesn’t identify any. I don’t think he can be referring to the Data Protection Act 2018. Perhaps he doesn’t mean legislation at all. He continues:

The legal changes were brought about by judges, who the same MPs would be quick to condemn in other circumstances. The chilling effect of this law should not be left unchallenged.

So I believe he must be thinking of judge-made law —  common law — rather than primary or secondary legislation made under the authority of parliament. And, as I explain in Enemies of the People?, the case brought by Cliff Richard against the BBC in 2018 did indeed establish that people under investigation by the police have a legitimate expectation of privacy.

There are exceptions, of course, but the High Court ruling in Richard v BBC was approved by the Court of Appeal this summer in a case brought by an un-named businessman against the Bloomberg news agency. Lord Justice Simon said:

Those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty. In the present case, the claimant has not even been arrested.

There may be another reason for not naming the MP in this case. Rape complainants are entitled to anonymity. Once the MP is named, it may be possible to identify the complainant by piecing together information in the public domain, a process known as jigsaw identification.

That’s why offenders who sexually assault family members are not named. But I have not heard of the same protection being extended to former employees.

Has the law taken a wrong turn? There is certainly academic support for that view. As a journalist, I am concerned that the public is now less well informed. But many people outside the media will welcome increased privacy rights.

Another argument for naming rape suspects before charge is doing so will encourage other complainants to come forward. But it is not too late for them to do so after a defendant has been charged — or, indeed, a decision is taken not to bring charges.

I have not tried to find out who the MP in question is: it’s much easier not to know. I expect there are names circulating on social media. They may or may not be correct. But, unless the suspect’s name becomes widely known, the issue of principle remains.

I come back to the point made above by Sir Peregrine Simon in one of the last judgments he delivered before reaching retirement age. People assume there is no smoke without fire. Shipman argues that view is fuelled by not identifying the suspect. In my view, pieces like his add fuel to the fire. They make it even harder to uphold the presumption of innocence. Remember “the much maligned Christopher Jefferies”, as Simon called him?

Shipman was approached by the complainant before she went to the police and tells us that “this is not a simple case”. As he adds, “no case where sexual assault is claimed ever is”.

That being so, what’s to be lost by waiting to see whether the MP is charged? If he is, he will be suspended. And then we’ll all know who he is.