Tuesday, 26 September 2023

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The protection of identities in the criminal process

~ By Michael Hor ~

The recent media excitement over several criminal prosecutions involving a sexual element has created some discomfort in some quarters over how such cases should be handled in terms of protecting the identities of the people involved.

While it will be improper to talk about particular proceedings which have not yet been resolved with finality, it might be opportune to reflect on the broader tension at the heart of calls to expand the law and practice of identity protection.

First, a brief description of the law. There are general provisions vesting wide discretion in the trial court to enforce anonymity if there is “sufficient reason” to do so – section 7 of the Subordinate Courts Act is an example.

Specific to sexual offences, section 153 of the Women’s Charter prescribes compulsory anonymity where a female victim of a sexual offence is below 16 years of age. Where she is between 16 and 18, the court has discretion whether or not to conduct the trial in camera – where observers and journalists are excluded.

But in all proceedings concerning a sexual offence, and whatever the age of the complainant, and whether or not the trial is conducted in camera, there is a compulsory “gag” on the publication of material which might lead to the identification of the complainant. Section 153 of the Women’s Charter, it ought to be noted, applies only to specified sexual offences – essentially serious offences like rape, outrage of modesty and the like.

While these provisions do not technically bind the police from disclosing information before the trial, it stands to reason that in a situation where anonymity is compulsory, the police are under an obligation not to reveal information which might contradict the anonymity which would be enforced should the matter come to trial.

The difficulty here is with respect to discretionary anonymity – for the police might not be able to predict with certainty how a court would subsequently regard the matter. The fact remains that there are no clear rules which govern police disclosure or non-disclosure before a trial. Our law does not seem to contain a constitutional right to privacy which one might hold up against perceived wrongful or inappropriate disclosures by the police.

Questions have been raised about what is to happen to women who might be at least partial ‘victims’ of sexual aggression which does not fall within one of the offences listed in section 153 of the Women’s Charter. One can think of a situation where a female subordinate is blackmailed into ‘consensually’ having sex with her employer.

The offence of extortion (which now includes blackmail) is not listed in the Women’s Charter, and in such a case, the woman would not enjoy compulsory anonymity. It is possible to persuade a court to exercise its general discretion to confer anonymity, but there is no guarantee that a court will do so. One might then ask why section 153 should not be expanded to include situations like these.

Whether it is an issue of amending the statute to broaden its reach or a matter of discretion for the trial court to order anonymity, there is a fundamental clash of public interests which cannot be easily resolved.

From the viewpoint of preserving the integrity of the criminal process, there can be no doubt that the public interest is in upholding the principle of an open trial. Transparency and publicity is believed to be conducive to accountability, and serves the valuable function of allowing justice to be seen to be done. The point can be obliquely but effectively illustrated by the massive misgivings accompanied by use of the Internal Security Act.

Nonetheless, the provisions for discretionary and compulsory anonymity represent a governmental determination that in some situations we have to bear with the necessary evil of a closed trial in order to pursue a greater interest.

You can read the rest of the article at this AWARE’s website.

TOC thanks AWARE for allowing us to reproduce an excerpt of Michael Hor's article. Michael Hor is a Professor at the Faculty of Law, National University of Singapore, where he has taught and researched criminal law and processes for more than 20 years.



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