Women in Criminal Law
I
n many jurisdictions around the world, complainants in sexual offence cases have a right to anonymity.
This is the position in England, Wales and Northern Ireland, where identifying a complainant in a sexual offence case is a criminal offence. Complainants in sexual offence cases are similarly protected in the Republic of Ireland, Canada, Australia, New Zealand, India and Bangladesh. In Scotland, however, complainers have no automatic right to anonymity. Statutory provisions which apply in England, Wales and Northern Ireland do not apply to Scottish complainers. The Sexual Offences (Amendment) Act 1992 The Sexual Offences (Amendment) Act 1992 provides lifetime anonymity for complainants in sexual offence cases. Section 1 of the Act states that, where an allegation has been made that an offence to which the Act applies has been committed against a person, no matter relating to that person shall be included in any publication during that person’s lifetime, if it is likely to lead members of the public to identify them. Section 2 of the Act then lists the offences to which this Act applies, which includes most sexual offences recognised by the law of England and Wales and the law of Northern Ireland. It is important to understand that the 1992 Act does not protect Scottish complainers. Scottish publishers are prohibited from identifying complainants in cases elsewhere in the UK. However, no Scottish statutory or common law offences are included in the list of sexual crimes to which a right of complainer anonymity attaches. This means that Scottish complainers do not have the same rights as complainants in England and Wales or Northern Ireland. Scotland’s legislative gap In terms of the protections available to Scottish complainers, under section 11 of the Contempt of Court Act 1981, an order can be made which allows the court to withhold a name or other matter in connection with court proceedings. However, these orders are not automatic and are not commonly used in sexual offence cases in Scotland. The media is also bound by the Editors’ Code. The Code provides that complainers should not be identified by the press ‘unless there is adequate justification and they are legally free to do so’. Journalists may therefore be ethically and professionally constrained from publishing information which can lead to the identification of complainers – but ultimately this is simply an ethical code and is not legally enforceable in our courts.
Complainer anonymity: Scots law in need of reform
14 | LegalWomen
As a result of this legislative gap, the anonymity of complainers in Scottish sexual offence cases is legally precarious. For example, in 2015, a Scottish newspaper published an article which reported that an accused had been found not guilty of a sexual assault. The complainer was named in the article. He subsequently complained to the Independent Press Standards Organisation (IPSO) alleging a breach of the Editors’ Code. He explained that the article caused him significant upset and that his family and friends found out about the incident by reading the report in the press. The newspaper noted that no order had been made under the Contempt of Court Act in this case and that, while it is usual practice not to name complainers, there is no statutory provision which provides for a right to anonymity in Scotland. While IPSO did find a breach of the Editors’ Code, this case demonstrates the risks associated with this legislative gap. With no section 11 order in place and no statutory right to anonymity, complainers are reliant on the professional regulation of the media.
