Court Reporting 6 - Restrictions on identifying complainants in sexual offences
- Created by: nat_goodlad
- Created on: 19-10-24 10:11
Illegality
It is illegal in almost all circumstances to publish any detail or image which identifies or is likely to identify a person in their lifetime as being the victim or alleged victim of a sexual offence, human trafficking offence, FGM offence, or forced marriage offence.
This anonymity applies from the time an allegation is made. It normally remains in place regardless of whether the allegation is later withdrawn or the police are told, or an alleged offender is prosecuted, or anyone is convicted.
An organisation or person who published such illegal material can be prosecuted and is liable to pay a fine unlimited by statute.
Jigsaw identification
This must be avoided. Suppose a newspaper reporting a **** trial described the alleged victim as a 'mother of three' who lives and works locally, a TV station describes her as a nurse, and a radio station describes her as a woman in her 30s who works nights. This combination of detail could identify her to colleagues and acquaintances.
A report will break the law if it includes any detail likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed
When does anonymity not apply?
The statutory anonymity does not apply in some circumstances, most notably when a person aged 16 or older gives written consent to be identified as such a victim/alleged victim. But when such a person can be legally identified, journalists should consider if the anonymity provision in media regulators' codes of conduct continues to apply.
Media organisations should realise that if they publish material which discloses that a person is the victim/alleged victim of an offence in respect of which they are provided with anonymity by UK statute, and the person did not consent to that identification, they could successfully sue the publisher for damages for breach of privacy.
A person may be able to do this even if they do not have statutory anonymity e.g. because the offence was committed/allegedly committed and the perpetrator/alleged perpetrator cannot by law be prosecuted in the UK
Section 1 Sexual Offences (Amendment) Act 1992
The act says that after an allegation of a sexual or human trafficking offence is made, no matter relating to that victim/alleged victim shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as the victim/alleged victim of that offence.
The ban includes publication of their name, address, school/work, still/moving picture.
Section 6 of the act defines publication as any speech, writing, relevant programme, or other communication in whatever form addressed to the public.
****
Penetration of vagina, anus or mouth without consent by penis. If the victim is aged under 13 any such conduct is defined as **** even if the victim says there was no compulsion because they are so young. Note - while legally a person without a penis cannot commit ****, a female may be guilty of **** if they assist a male perpetrator in an attack.
Assault by penetration
Of vagina, anus or mouth. without consent and otherwise by penis - e.g. finger or object.
Sexual assault
Intentional sexual touching without consent
Administering a substance with intent to engage a
e.g. spiking someone's drink with a drug with a sexual motive
Sexual activity with a child (+ causing or incitin
If the child is under 16 it's either-way. If the child is under 13 it's indictable-only.
Sexual activity by an adult with a child family me
NOT incest because incest is consensual.
Abuse of a position of trust through sexual activi
A male teacher having consensual sex with a 17-year--old who is not a school pupil is not committing a crime as she is over 16, but if they are a pupil at the school where he works it's criminal abuse of a position of trust
Voyeurism
Observing for sexual gratification someone else or people doing something private e.g. showering or sex knowing they did not consent to being observed
Upskirting
Created in 2019 to outlaw the taking of a photograph under a person's clothing without their consent with the intention of viewing their genitals or buttock or underwear covering these to obtain sexual gratification or to cause humiliation
Courts making an invalid anonymity order
The media may decide, particularly when covering a court case involving alleged sexual abuse within a family, that the only way to preserve anonymity for the alleged victim(s) is not to publish anything identifying the adult defendant. But occasionally courts have sought to make that choice for the media by passing an order under the Sexual Offences (Amendment) Act 1992 stating that the adult defendant should not be identified. There is no power in the Act to make such an order. It should be challenged as it's invalid. The Judicial College guidance states this.
Courts removing anonymity
A criminal court due to try someone for a sexual, trafficking, FGM or forced marriage offence can remove an alleged victim's anonymity if it is satisfied that otherwise the accused person's defence at the trial would be substantially prejudiced. This law allows lawyers for a defendant seeking to list an alleged victim's anonymity to argue that publically identifying that person would induce witnesses to come forward and help the defence. For example, if this is an alibi defence, allowing the media to identify the alleged victim of a sexual offence could jog people's memory about that person's whereabouts at the time of the alleged crime.
If the offence is indictable-only, a magistrates court does not have power to waive the anonymity.
Under the 1992 Act, the judge or magistrate at a trial of a sexual of trafficking offence can lift the alleged victim's anonymity if satisfied it would impose a substantial and unreasonable restriction on the reporting of the proceedings and that it is in the public interest to do so. Section 3 of the Act says the court cannot remove the anonymity 'by reason only of the outcome of the trial' meaning the victim/alleged victim cannot be identified simply because the defendant was acquitted.
Removing anonymity for FGM/forced marriage offence
Paragraph 1 of Schedule 1 of the 2003 Act on FGM offences and Paragraph 1 of Schedule 6A of the 2014 Act on forced marriage offences say that a court can remove the anonymity of a victim/alleged victim if they are satisfied the anonymity would impose a substantial and unreasonable restriction on reporting, and it is in the public interest to do so.
Breaching anonymity in the Editors' Code
Any breach by a media organisation of anonymity provided by law would also breach the relevant doe, in that a person whose identity is protected by law has a 'reasonable expectation of privacy in that respect.'
The combined effect of Clause 7 'Children in sex cases' and Clause 11 'victims of sexual assault' is to ban media organisations which are Ipso members or any others which adhere to the code from identifying any victim or alleged victim of a sexual offence unless the law permits. So, breach of anonymity provided by the 1992 Act by publishing too much detail from a court case would lead to Ipso ruling the code was breached.
Even if the law allows identification of a victim/alleged victim, clauses 7 and 11 mean anonymity should be preserved on an ethical basis, unless an exception stated in the relevant clause applies
Public interest exceptions to identification
Some breaches of the Code can be justified if an editor can demonstrate what was done was 'in the public interest'. This includes
- detecting or exposing crime
- protecting public health or safety
- protecting the public from being misled by an organisation or individual
- disclosing a person or organisation's failure to comply with an obligation
- disclosing a miscarriage of justice
- raising or contributing to a matter of public debate
- disclosing concealment
An exceptional public interest would be needed to override the usually paramount interests of those under 16
Rule 1.8 of the Ofcom broadcasting code
The rule says broadcasters should be 'particularly careful' not to provide clues which may lead to the identification of children when by law they should have anonymity. This rule warns against jigsaw identification and that inadvertent use of the term 'incest' may identify such a child
Editors' Code Clause 11
The clause says: "The press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so.
"This covers all victims or alleged victims of sexual offences, whatever their age.
"But the particular overriding provision in clause 7 as regards the identification of those under 16 means clause 11's term 'adequate justification' applies to editorial decisions on the identification of those 16 or older. An example of adequate justification is when such an adult wants to be identified and has given valid, written consent, so their identification is legal.@
Schedule 6A of the Anti-Social Behaviour, Crime an
This automatically bans any publication from identifying a person in their lifetime as being the victim/alleged victim of a forced marriage offence.
Modern Slavery Act 2015
This was created to clarify and consolidate the law on slavery, forced labour and human trafficking, and to increase the penalties for such offences.
The 2015 Act amended Section 1 of the Sexual Offences Amendment Act 1992 so that lifelong anonymity given to victims/alleged victims of sexual offences now also covers victims/alleged victims of human trafficking for exploitation offences in Section 2 of the 2015 Act.
These are:
- arranging or facilitating the travel of another person with a view to that person being exploited
- being required to perform slavery or compulsory labour
- because something is done to or in respect which involves or would involve the commission of an offence listed in Part 1 of the Sexual Offences Act 2003
- by being encouraged, required, or expected to donate or sell an organ
Comments
No comments have yet been made