Open Justice Case Study

Fiona Mactoggart, a British Labour politician, stated that “the government proposal to grant anonymity to rape defendant’s sends a message to juries and rape victims that the victim is not to be believed”. If this is the case, this would deter rape victims from a reporting a crime which is already grossly under-reported (it is suggested that around one in ten victims of rape do not report it to the police). The Rape Crisis charity argued that granting anonymity to defendants would “victimise victims further” . In respect of jurors, McGee conducted a study whereby she found that a staggering forty percent of the participants felt as though many rape allegations were fabricated. By granting rape defendants anonymity, it runs a risk of making

Open justice is the notion that law proceedings should be done under the public eye. Open justice is considered a very important notion of the rule of law in the UK. In the case of Terry, Justice Tugnedhat stated that “open justice is one of the oldest principles of English Law, going back to before Magna Carter”. Chief Justice of Canada, Rt Hon Beverely McLachln Pc argued that the “law belongs to the people. Access to the legal system is a basic right and a public good”. Article 10 of the ECHR stipulates that “everyone has the right to freedom of expression” . A right not only enjoyed by the media, but also the public at large. Anonymity for those accused of rape and the restriction of media reporting in rape cases could pose a serious breach to this ‘basic right’ and undermine open justice and Britain’s unwritten constitution. However, some argue that the media take advantage of the notion of open justice in order to legitimise reports which are merely publicised in the view to gain. Newspapers and other forms of news outlets often are attracted to the most ‘newsworthy’ stories in order to boost ratings and drum up profits. In Dinett V France, the judge stated that the “holding of court proceedings in public constitutes a fundamental principle enshrined in Article 6. Article 6, as aforementioned, is the right to a fair trial. Open justice is an important mechanism for regulating the

Article 2 stipulates that there is a protection of the right to life. Article 3 stipulates that there is a right to protection from degrading treatment. An example of where the courts have had to decide where the courts have had to decide which of the conflicting rights outweighed the other is in the case of John Venebles, the murderer of James Bulger. After he was arrested for possession of child pornography some years back, it was considered whether his anonymity should be lifted. The court considered however, that there was a “clear and present danger to his physical safety and life” and so he should retain his anonymity. So, if is suggested that a rape defendant’s life or physical safety could be endangered through revealing his identity, an anonymity order may be imposed.

Some argue that granting anonymity for rape defendants could in fact encourage victims to report. As previously mentioned, a large proportion of rape perpetrators and known to the victim often intimately. Therefore, victims might be concerned that should they report to the police that they themselves will indirectly be identified due to the closeness of the relationship. However, there is already protection in place for instances like this. If the courts consider that identifying a rape suspect or defendant would indirectly identify the victim, the courts will not identify the