The title to this post draws upon a well known phrase that has its origins from the mid 17th Century. It refers to the stupidly rigid application of the law. Charles Dickens is often credited with being the author of it although it was actually only he who put it into print in his novel Oliver Twist in 1838. When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “…the law supposes that your wife acts under your direction”, he replies: “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass – an idiot”.

The phrase has since entered into our popular culture and you can regularly hear it spoken in pubs or written on social media sites to display dissatisfaction at some such court decision. But when one looks at the decisions in question it is often possible to see that it is not the law that is the ass but those that simply cannot understand the reasonings and implications of the decision. Now I am not going to sit here and say that I agree whole heartedly with ever decision that is handed down by the courts. If we all did that then the Court of Appeal would be redundant and a waste of tax payer money, but sometimes, just with a little effort, one can see why the court either made its decision or why the legislature enacted a law in the first place.

I could reel off a whole list of supposedly unpopular court decisions that have been met with derision and scorn by the common man, I have in fact already commented on some in my recent post on whether or not poppy burners in fact get lenient sentences, but I’ll instead limit myself to two recent matters; one which did involve a court case and one that will no doubt soon see the inside of a courtroom.

R v Evans and McDonald. Footballer Ched Evans was convicted and sentenced to five years imprisonment on 20th April 2012. Evan’s co-defendant, McDonald, was acquitted. Evans was an established striker with Sheffield United until his trial and conviction at Caernarfon Crown Court. At the time the conviction of Evans was greeted by many Sheffield United fans with, ‘The law is an ass!’ (or words to that effect that I shall not repeat here) and some of them took it upon themselves to display their dissatisfaction with the judgment. North Wales Police subsequently investigated claims that Evans’ victim had been named and subjected to abuse on Twitter after the trial.

On Monday 5th November nine people were fined after admitting to revealing online the identity of a woman raped by Evans. District Judge Andrew Shaw ordered the defendants to pay the victim compensation of £624 each. The court was told a fine was the maximum penalty the charge could attract. Shaw said rape was one of the only crimes punishable by a maximum sentence of life. He went on to say: “It’s a crime against women which subjects them to the most intimate personal violation.” Each of the defendants had identified the victim, and others had added abuse. “You did so without proper knowledge of the facts and without any heed of the feelings of the victim,” he said. Shaw stated that the defendants, who were relatives or friends of Evans, had posted the comments with “deliberate malice”. He added: “Your actions have re-victimised this woman.”

All the Defendants claimed they had been unaware that naming the victim was a criminal offence under the Sexual Offences (Amendment) Act 1992, as amended by the YJCEA 1999, schedule 2. Furthermore, section 11 of the Contempt of Court Act 1981 empowers the court to impose a permanent ban on the publication of any name or other matter in connection with the proceedings before it which it has allowed to be withheld from the public. The section complements the common-law power of a court, sitting in public, to receive a small part of the evidence (such as the name or address of a witness) in a form which is not communicated to the public.

The law gives victims and alleged victims of rape and other sexual offences lifelong anonymity. There are specific reasons why anonymity is awarded to sexual offence victims, and why it should be protected. Almost 90% of people who experience a serious sexual offence don’t report it to the police according to the British Crime Survey. But for some people this does not matter. Even though the vast majority of them did not sit through all the evidence presented at trial, and because they believe that their footballing hero could not possibly be a rapist, and that his victim is just out to make money due to one non-specific tweet and some unverified anecdotes, her anonymity does not matter and she should get everything that is coming to her. There are those that believe the nine people convicted of revealing her identity were just speaking the truth. And that the law is an ass for protecting her.

On Thursday 8th November during a live interview with David Cameron, Phillip Schofield handed the Prime Minister a list of alleged paedophiles based on internet speculation and asked him to comment on it. Due to an error on Scofield’s part (although I would argue the who incident was an error in judgment by the much loved TV presenter) the names on the list were visible to the TV cameras and thus the viewing public. Thus, whether Schofield wanted to or not, internet speculation and rumour was exposed onto the mainstream media and a witch hunt began.

The BBC has also become embroiled in a new row over a Newsnight investigation which planned to out a senior political figure as a paedophile on their show. However, the allegations, in conjunction with the gaff by Schofield meant that one Tory politician in particular decided to come out and refute the allegations. Claims linking Lord McAlpine to alleged historical child abuse are “wholly false and seriously defamatory”, the Conservative peer has said. His full statement can be found here.

In a statement, the BBC says the Newsnight investigation “set out to explore alleged failures in a child abuse inquiry. An abuse victim had serious allegations to make and deserved to be heard. We broadcast as much information as we had but made clear we did not have enough evidence to name new individuals.”

Lord McAlpine was exonerated by the 1997 Waterhouse inquiry of any involvement in the abuse of children in the north Wales homes but not named because of an order by the retired judge preventing the identification of either victims or alleged abusers. As a result he has been the subject of persistent smears, which resurfaced following the Newsnight allegations about a senior Tory. Steve Messham, the man who wrongly believed a Tory peer sexually abused him, has apologised for the mistaken identity and hopes to apologise in person to Lord McAlpine soon.

Now some might say that the law is an ass for allowing victims of rape and suspected paedophiles (albeit ones solely based on internet speculation by keyboard warriors) to have some protection for anonymity. Since 1976, people who allege they are the victims of certain sexual offences, including rape, are automatically entitled to lifelong anonymity once their complaint has been made. This entitlement can only be lifted in certain circumstances, for example if the complainant chooses to reveal his or her identity or if the court orders that anonymity should be lifted in order to encourage witnesses to come forward. Some people have argued that the right to anonymity ought to be removed or limited where the complainant is believed to have made false allegations.

The Sexual Offences (Amendment) Act 1976, which first introduced anonymity for complainants, also provided for anonymity for defendants: apparently for the purpose of providing equality between complainants and defendants, and to protect potentially innocent defendants from stigma. However, this provision was repealed in 1988 and people accused of sexual offences therefore no longer have any particular entitlement to anonymity. There has been continued discussion as to whether anonymity for defendants should be reintroduced. In 2010, the newly elected Government indicated that it would “extend anonymity in rape cases to defendants”. However, this proposal was subsequently dropped on the grounds that there was insufficient reliable empirical evidence on which to base a policy decision on providing those accused of rape with anonymity, not to mention a backlash from activists.

So in essence there was little to no chance of the law protecting the identity of suspected paedophile MPs should they be charged with a criminal offence. But one can understand the arguments of perhaps allowing such protection. As the fictional lawyer, Eugene Young, says while cross-examining a victim in an episode of The Practice where he is defending a man suspected of multiple rapes, “Rape is a terrible crime…and it would be a terrible thing to falsely accuse someone of rape…terrible not only because it can destroy the life of the falsely accused but it would make people less likely for people to believe the claims of those that had been raped.”

I count myself lucky that I have personally never had to work on a rape or molestation case. I have friends and colleagues who have and they all seem in agreement that the academic study of this area of law can never truly prepare one for the reality of dealing with such a case. Do I believe that it is right to have anonymity for rape victims? Yes of course I do. Do I believe that the same should be applied to those accused of rape or some such similar crime? Well I can see the arguments both for and against.

I do believe that Lord McAlpine is quite correct in taking legal action against those individuals on Facebook, Twitter or online forums who “named and shamed” him as one of the possible paedophile MPs. Schofield has apparently been reprimanded by ITV bosses and OFCOM may investigate further but it is highly unlikely anything further will happen to the nation’s favourite silver fox.

But there are many others that might find themselves in court soon. Lord McAlpine announced last week that he is taking landmark legal action  against internet gossips who falsely branded him a paedophile. Jonathan Creek star and QI funny man, Alan Davies, is among thousands that could be sued in what is thought to involve the largest number of defendants in British legal history. Lord McAlpine’s lawyers have found 1,000 original tweets and 9,000  retweets suggesting that he is a paedophile.

Sally Bercow, the wife of the Speaker of the Commons also appears to be a defendant in the action after she tweeted the message below. Whether or not Mrs Bercow believes that Lord McAlpine’s lawyers are ‘ambulance chasers’ or that this is all politically motivated against her husband is quite frankly irrelevant at this point. It will be up to a court to decide whether she was just being curious as to the twitter trend or whether she was actively participating in ‘outing’ the Tory peer. It has also been reported recently that the BBC will pay Lord McAlpine £185,000 in compensation after the false child abuse allegations and that ITV is also on his lawyer’s list of possible defendants.

Those individuals that will undoubtedly find themselves before the courts facing claims for defamation of character may well think that the law is an ass for putting them in that position, but the real truth of the matter is that they only have themselves to blame. So is the law an ass, or are they?

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

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