The decision to award Sir Cliff Richard a significant sum for a breach of his right to privacy comes at a moment when issues of false allegations and the way sexual assault cases are to be investigated and prosecuted is to the fore in any event.
Those in the media arena see the result as having a chilling effect on the right to freedom of expression and in particular the impact the ruling could have on investigative journalism and crime reporting in particular.
However the recent decision to cease the investigations into the allegations made by “Nick” and the decision to prosecute him highlight the reverse situation. Extensive media reporting of allegations “in the public interest” caused untold damage to those against whom the allegations were made and their family and friends. Reputations were irreparably tarnished with some of those against whom allegations were made dying before the change in view of the allegations. The recent decision may cause media to give more thought to the articles they print or broadcast.
The issues of police failures in disclosure of relevant evidence in cases of alleged sexual offences which lead to significant loss to the accused which can never be corrected. The two men have faced abuse and have lived with the stigma of the allegations and even though these have now been corrected there are the lost years of college and career and the lost opportunities which may never be fully identified. There will also be the suspicion held by some that the allegations must have held some truth.
Extensive media reporting of offences during the course of investigations and the trial itself may contribute positively or negatively to the process. It may encourage witnesses or victims to come forward as they feel they may now be believed but may also dissuade witnesses or victims who fear identification and the embarrassment of revelation of their trauma to friends and family.
Following a recent high profile rape trial in which four men including Ulster and Ireland rugby players Paddy Jackson and Stuart Olding were acquitted of rape there has been much debate in Northern Ireland about how allegations of rape or other serious sexual offences are prosecuted. Coverage of the trial and evidence which came to light during the trial lead to both men losing their Ireland contracts and moving abroad to continue their careers.
As a direct result of the trial, the media and social media coverage, and the fallout from that trial retired Lord Justice of Appeal Sir John Gillen has been appointed to conduct a review of the process and to make recommendations on how the complex and sensitive issues of sexual offences can be properly investigated and prosecuted. Sexual offences are considered to be largely under reported and there is much debate and speculation as to the reasons why. One concern voiced is the low conviction rate.
Sir John will be assisted by a panel of eleven people from various disciplines and groups and will look at issues as wide as the use of social media where a victims anonymity is breached with ease, the process of interviews and use of victim advocates in trials to address the perception that the victim is unrepresented while the accused have access to their own legal team. Another issue, which may be influenced by the Sir Cliff Richard decision, is the consideration of anonymity to an accused person prior to conviction.
The use of social media in identifying the complainant in the Northern Ireland trial and comment on social media during and after the trial was a major concern. This arose during submissions in the trial itself and has been raised following the acquittals. Is the potential restriction on the freedom of the press justified or even necessary to protect the integrity of the judicial process? A thorny question with no clear answer.
While this has been triggered by a recent case there are implications for much wider matters including more historic matters. In fact the difficulties in investigating older cases are more significant than more recent cases where scientific evidence can be more easily secured. “Nick” and his allegations highlight that.
Public statements and reporting have been used to locate potential witnesses or other victims of an abuser. There were many new reports following the coverage of allegations against Barry Bennell and this is a reason not just from within media circles but also the police and the wider safeguarding community to continue to allow the use of wide media reporting of issues in the absence of convictions.
It is intended that the Gillen investigation will report in January 2019 and there may be a wider consultation in the Autumn. The recommendations to follow may well lead to calls for similar reviews and recommendations across the UK.
Published by Fintan Canavan, BLM Partner