Rape victims could give evidence in private under new trial proposals

Judge holding gavel in courtroom
Judge holding gavel in courtroom - Chris Ryan/OJO Images RF

Journalists and members of the public could be barred from attending parts of rape and sex assault trials under radical new plans being considered.

Proposals put forward by the Law Commission would see complainants in sex offence cases allowed to give evidence in private if they requested it.

It would mean members of the public would not be able to observe crucial parts of the proceedings and only one member of the press would be permitted to remain in court.

The plans are intended to remove some of the stress and anxiety associated with traumatic trials allowing victims to give best evidence.

But there is concern that the plans would deal a severe blow to the principle of open justice and would be unworkable in practice.

With as few as 3 per cent of reported rapes resulting in a conviction in England and Wales, the Government asked the independent Law Commission to consider what could be done to improve the situation.

The work began in 2021 and among a raft of proposals is the recommendation that complainants in sex offence cases are given the option to give evidence behind closed doors.

While one member of the press would be permitted to remain in court there are fears journalists would be unable to provide a fair, accurate and contemporaneous report of legal proceedings if they were excluded from hearing the complainant’s evidence.

The recommendation states: “A right to have the public excluded would allow complainants to give evidence without additional stress and concern about being observed, and possibly identified, by strangers, family and friends of the defendant, or multiple reporters and bloggers.

“This is particularly important given the sensitive nature of the evidence they will be giving and the questions they will be asked.

“We provisionally propose that sexual offence complainants should be automatically entitled to a range of measures to assist them to give evidence, including giving their evidence without the public present.

“To reflect the importance of open justice, the current exemptions would apply which enable a member of the press to attend and report.”

Complainants in sex abuse cases currently have lifelong anonymity and are often allowed to give pre-recorded evidence or be shielded from view in court by screens.

The new proposals would mean the part of the trial when they give evidence and are cross examined would effectively be held in private with just legal representatives, the jury and the judge present.

But politicians and media representatives have expressed grave reservations about the plans, warning that it could erode confidence in the justice system rather than enforce it.

Robert Buckland MP, the former justice secretary, said: “I am all for achieving best evidence in rape and sex abuse cases but I would need to be persuaded of the merits of this proposal.

“The more this sort of thing happens, the more the case will be strengthened for giving defendants anonymity until conviction.

“Not allowing the press to be present for a complainant’s evidence increases the risk of unfair or skewed reporting in trials which is not in the interests of open justice.”

Justice ‘must be seen to be done’

Dawn Alford, the executive director of the Society of Editors, also said it was a worrying development and called on the Law Commission to reconsider.

She said: “At a time when public confidence in the police and judicial system is already low, placing additional restrictions on the media’s ability to report on how decisions are made is likely to further reduce, rather than enhance, both the public’s confidence and the reporting of sexual offence cases more generally.

“In order for justice to be done, it must also be seen to be done, and we hope that the Commission will re-consider this proposal.”

She also warned that the plans to allow just one reporter into the courtroom was unworkable.

“There is no process that currently exists whereby it could be easily decided which journalist should attend and there is no system in which copy could be checked for accuracy and quickly distributed to the international, national and regional media with interest in a particular case,” she said.

A spokesman for the Law Commission said: “The Law Commission is reviewing the law on the use of evidence in sexual offences trials. It wants to improve how complainants are treated; make sure that defendants get a fair trial; and improve knowledge of consent and sexual harm.

“Complainants can already request to give evidence in private. We are consulting on making this easier for complainants and it will always be their choice whether to request.

“But this would continue to include an important exemption to allow the media to report the story.

“We are currently consulting with the public on all aspects of our project; we welcome all views on our proposals. Once we produce our final recommendations it will be for government to decide how to proceed.”