.png){kind=icon}
Section numbers from the book are used where relevant. The book should be read too. Its content provides fuller explanations and context.
11.1 Automatic lifelong anonymity
Case study: David Dinsmore, former editor of The Sun, was convicted in 2016 of breaching the Sexual Offences (Amendment) Act 1992, because the newspaper published a photo identifying the victim of a sexual offence. Mr Dinsmore denied the charge, but was found guilty by the Chief Magistrate, District Judge Howard Riddle at Westminster magistrates’ court. The case was brought by Durham police. It arose from a Sun article published after Sunderland footballer Adam Johnson’s arrest in 2015 for illegal sexual activity with a 15-year-old girl. Johnson was jailed for this in March 2016. The article showed part of a photo of him with the girl in which her face was obscured. The article did not name her. It warned that anyone who identified her online would face prosecution. But, Mr Riddle heard, some social media users identified her from The Sun’s report because they recognised similarities between the original photo, from when it had been visible on a private Facebook account, and the altered version used in the report. Mr Riddle said he was satisfied that Dinsmore and The Sun staff thought they were complying with the law because they took extensive steps to change the photo to obscure the girl’s image, including changing the colour and length of her hair, and the background in the photo. Dinsmore, who in 2015 became chief operating officer of News UK, which owns The Sun, told the court that the test staff applied was ‘can this person be identified by a man or woman on the street?’ He was ordered to pay £1,000 in compensation to the girl, and £1,300 in costs. He apologised to the girl (Durham Constabulary press release and Press Gazette, 7 March 2016).
Case study: The Luton Herald and Post was fined £1,000 in 2013 for identifying a woman victim of a sexual offence, in a report of a man’s trial on rape and sexual assault charges. The report did not name her but included a combination of detail which identified her – her age and home country, that she had come to the UK to study, the approximate date and location of her arrival, the name of the placement agency she used, where she was studying, how she had met her attacker and reference to her living arrangements and professional aspirations (Media Lawyer, 8 October 2013).
Case study: Trinity Mirror Southern Ltd was fined a total of £10,000 in 2011 after it admitted that the Aldershot News and Mail, Farnborough News and Mail, Fleet News and Mail and the Yateley News and Mail had published a court report which named two victims of sexual assault. It was also ordered to pay each of the women £5,000 compensation. Human error was blamed for this breach of the Sexual Offences (Amendment) Act 1992. A Crown Prosecution Service lawyer said: ‘The disregard by the newspapers of these women’s automatic right to anonymity proved traumatic to those involved and required extensive extra police and victim support’ (Hampshire Constabulary’s Frontline magazine, issue 163, July 2011).
Case study: The Daily Mirror was fined £1,200 after it admitted breaching the 1992 Act. Its report in 2011 of a man's initial appearance before Teesside magistrates named one of two women he was accused of sexually assaulting. The breach also led Cleveland Police to complain to the Press Complaints Commission on the woman’s behalf. The PCC, noting that being named caused the woman considerable distress, said the breach was an ‘alarming case’. It ruled that the Mirror’s report breached clause 11 of the Editors' Code of Practice. The newspaper apologised to the woman. It told the PCC it had launched a thorough investigation into how her name came to be published, and would improve staff training to prevent such breaches in future (The Guardian, February 19, 2013; Cleveland police v Daily Mirror, PCC adjudication published February 19, 2013).
Case study: In 2007, the Lancashire Evening Post’s parent company was fined £3,000 and ordered to pay £4,000 compensation to two women victims of trafficking for prostitution, whose anonymity was breached in a report (Media Lawyer, December 14, 2007).
Case study: In 2006, the Daily Telegraph was fined £2,000, and ordered to pay £5,000 compensation and the Daily Express was fined £2,700 and ordered to pay £10,000 compensation after both newspapers published photographs of a servicewoman which breached her anonymity under the 1992 Act. She was a complainant at a court martial at which a serviceman was cleared of a serious sexual assault. The photos pictured her from behind, so her face was not shown. After being prosecuted, the newspapers admitted the photos identified her, but said that at the time they were published it had been genuinely believed her anonymity was preserved. The Daily Mail, which also used a similar photo of the woman but changed the colour of her hair, was not prosecuted (Media Lawyer, February 23, 2006).
11.2.6 Trafficking offences for which victims/alleged victims have anonymity
Case study. The level of care required to avoid breaching anonymity was demonstrated by freelance journalist Michelle Rawlins when in 2017 she wrote a feature for The Guardian about a man held for 26 years as a slave by a family in Lincolnshire. That year 11 members of the family were given lengthy jail terms for Modern Slavery Act offences. They had enriched themselves by coercing men—who were homeless or with learning difficulties—to work as labourers. Michelle’s feature was based on an interview with the man’s sister who before his enslavement had lost contact with him after he drifted into a homeless lifestyle. In the feature, the sister told how she was reunited with him after police freed him. To preserve his anonymity, Michelle gave him a fictitious name in the feature, and before publication checked with the sister that no detail in it was likely to identify him or her. It used a photo of him as a child but his face was pixelated in it. The sister confirmed to Michelle that—other than relatives now aware he had been a slavery victim—no-one would recognise him from the home location shown in the photo (Michelle Rawlins interviewed by Mark Hanna, 14 November 2019. For the feature, see Useful Websites at the end of this chapter).
11.6.2 By court order, to lift ‘a substantial and unreasonable’ restriction on reporting
As explained in 11.6.2 in McNae’s, a court has power to lift the 1992 Act anonymity if it is satisfied that:
- the anonymity would impose a substantial and unreasonable restriction on media reporting of the trial; and that
- it is in the public interest to remove or relax it.
Case study: Police were hunting a known criminal, Arthur Hutchinson, after three members of the same family were murdered at their Sheffield home after a wedding party. To help trace Hutchinson, police publicly named him as the suspect, which added to the already-intense publicity about the case, and he was captured. The media had also named the murder victims. Some time after being charged with the murders, Hutchinson was also charged with raping a teenage girl linked to the family, in the same terrible attack. The media had not previously been told of the rape allegation. At Hutchinson’s trial on the murder and rape charges, lawyers acting for newspapers argued that it would be impossible for them to report the trial at all if their coverage could not identify the girl as the alleged rape victim, because if they could not do that their reports could not identify the family involved. The lawyers pointed out that publishing Hutchinson’s name or that the case was of three murders committed in such circumstances would in itself be enough for the Sheffield public to remember who the family was from the previous publicity, and therefore to identify the girl as the one involved in the trial’s evidence. Also, the lawyers pointed out that the evidence of the rape and murders was inextricably linked. The judge agreed that the media could identify the girl, and thus the family, because anonymity would otherwise impose a substantial and unreasonable restriction on reporting of the trial, and it was in the public interest for the trial to be fully reported (R v Arthur Hutchinson (1985) 129 SJ 700; (1985) 82 CrApp 51). Hutchinson was convicted.
11.6.3 If a person faces a criminal charge that a false claim of victimhood was made as regards a sexual or trafficking offence
As 11.6.3 in McNae’s explains, section 1(4) of the 1992 Act means that a victim or alleged victim of a sexual or trafficking offence can be identified in an article which consists ‘only of a report of criminal proceedings other than’ proceedings for the actual or alleged sexual or trafficking offence.
Case study: A Court of Appeal ruling in 2017 removed any doubt that criminal proceedings in which a person, after claiming to be a sexual offence victim, is charged with perjury or wasting police time or conspiracy to pervert the course of justice in respect of that claim, fall into the ‘other than’ category of proceedings under section 1(4). The Court said that the section’s meaning was ‘plain and obvious’, and that the Judicial College guidance about it is accurate. See Useful Websites, below, for the College guidance. The Court’s ruling arose in a successful challenge by The Sun against a Crown court judge’s decision that the media could not identify Jemma Beale in reports of her trial. In the trial she was convicted of perjury and attempting to pervert the course of justice because she made false allegations of rape and sexual assault, including one which had led to a man being jailed for seven years. He was subsequently acquitted on appeal (R v Jemma Beale in the matter of an appeal by News Group Newspapers [2017] EWCA 1012 (Crim)).
The ‘other than’ definition in section 1(4) means that it would be legal for media covering a burglary trial to identify a woman home owner when reporting that she had asserted in the trial that the alleged burglar raped her. However, the media would need to check that those proceedings at no time included a charge alleging she was a sexual offence victim - see the Newcastle Journal case below. The ‘other than’ definition would also allow the media to identify a woman defendant, charged with assaulting a man, as having said in those assault proceedings that the man had tried to rape her. But both such instances would require the relevant editor to consider whether it would be ethical for reports of the court proceedings to identify the woman.
The anonymity provision for victims/alleged victims of FGM or forced marriage offences does not have in the relevant statutes anything equivalent to the ‘other than’ definition in section 1(4) of the 1992 Act. But a journalist covering criminal proceedings in which the defendant is charged with wasting police time, or perjury, or perverting the course of justice as a result of claiming to be a victim of an FGM or forced marriage offence, could apply to the court for that person’s automatic anonymity to be removed, and argue that such anonymity would be a substantial and unreasonable restriction in the reporting of the case, and that the restriction is against the public interest in open justice – for context, see 11.6.2 in McNae’s.
Ch. 16 covers how to challenge reporting restrictions. See in particular, 15.1.1 and 16.9 in McNae’s about why reporting which can identify the defendant serves open justice best.
11.6.3.1 Newspaper breached anonymity after the rape charge was dropped.
Case study: In 2014, the Northern Echo newspaper admitted breach of the Sexual Offences (Amendment) Act 1992. The Echo had published a woman’s surname when reporting the trial of a man accused of physically assaulting her. During the trial the defendant’s barrister had referred to an alleged rape which did not end up forming part of the case against his client. Earlier in those proceedings – before the trial began – a charge that the defendant raped the woman had been dropped. The woman was very distressed about being identified by the Echo’s reporting. The fact that the rape allegation had not proceeded led the Echo to believe initially that it had been legal to name her in the reporting of the trial because the assault charge was not a sexual offence. The Echo thought it could rely on the defence in section 1(4) of the 1992 Act. That part of the Act says, in effect, that a victim or alleged victim of a sexual offence can be identified as such in an article which consists ‘only of a report of criminal proceedings other than’ proceedings for the actual or alleged sexual offence. Later the Echo accepted - after research into the origins of the 1992 Act and the wording of that part - that Parliament intended that the alleged victim of a sexual offence would retain lifelong anonymity in respect of that allegation even if the only sexual offence charge in the related proceedings was dropped or reduced to a lesser, non-sexual charge. At Teesside magistrates’ court, District Judge Martin Walker fined the Echo £2,400 for the breach of the woman’s anonymity, and ordered it to pay £4,500 in compensation, £2,003 in costs and a £480 victim surcharge. Its barrister Guy Vassall-Adams told the judge that the newspaper had immediately accepted that, ethically, the woman should not have been named in the trial report, but had believed that no law had been broken. Mr Vassall-Adams said it was ‘legally uncertain terrain’ (Media Lawyer, 25 and 30 July 2014).
11.6.4 The victim/alleged victim can give written consent to be identified
If one publisher is given written consent by a person to identify her or him to the public as being such a victim/alleged victim, does that allow other publishers to identify that person in that respect?
It would seem that the answer is ‘yes’, even if the other publishers have not got written consent from the person. The regulator Impress took this view after taking legal advice when considering a complaint in 2018, noting that there was such practice by media organisations (that is, if one organisation has the written consent, other publishers consider they too can publicly identify the person as being such a victim/alleged victim). But Impress added that there was no ‘settled legal position’ on this question (A person v Byline, 28 August 2018).
In 1994, Keith Parker, then editor of the Wolverhampton Express and Star, was acquitted in a magistrates’ court of breaching the anonymity of a rape victim. The victim had, before that newspaper identified her, allowed a wide range of other publishers to identify her, which was the essence of Mr Parker’s defence (Press Gazette, 1 August 1994). Since then there has not been another prosecution of a publisher for allegedly breaching anonymity which the victim had already waived for other publishers.
Best practice, if a media organisation states publicity that such consent has been given to it, is for any other publisher wishing to publish material which would identify the victim/alleged victim to contact her/him to check that the consent was validly given, and ideally to get written consent directly from her/him.
11.7 Provision for anonymity in ethical codes
As explained in 2.1.1 in McNae’s, in 2014 the Independent Press Standards Organisation replaced the Press Complaints Commission. Ipso uses the Editors’ Code of Practice to adjudicate on complaints against the press, as the PCC did. Under clause 7 of the Code, the press must not identify children under 16 as being victims or witnesses in ‘sex cases’ unless there is an exceptional, public interest justification and the law allows such a child to be identified in this context (and the law hardly ever allows this) – see 11.7.1.1 in McNae’s. The clause allows an adult defendant in such a case to be identified in press coverage, provided that coverage does not reveal if a family or other relationship exists or existed between the defendant and child (because such revelation, when the defendant is identified, would identify the child to anyone who knows of the relationship – see 10.8 in McNae’s).
In clause 7 ‘sex cases’ covers any situation in which a sexual offence is alleged – including if the allegation is made in a civil or employment tribunal case.
Clause 11 says that the press must not identify anyone as being a victim of a ‘sexual assault’ or publish material likely to contribute to such identification, unless the law permits this and there is ‘adequate justification’ for identification. These Code definitions include alleged victims of such offences. The Code’s use of the term ‘sexual assault’ covers a range of sexual offences including rape – again, see 11.7.1.2 in McNae’s.
Case study: In 2021, Ipso’s complaints committee (hereafter referred to merely as Ipso, for convenience) upheld a complaint that lep.co.uk had breached clause 7 in a report of a court case in which the defendant pleaded guilty to sexually assaulting a child. The report gave the age range of the child at the time of the abuse, and an indication as to when the abuse stopped. It contained information from the Victim Personal Statement of the child, which was read out in court, and described the circumstances in which the assaults had taken place. The defendant was named in the report. A woman complained that it contained details which implied the relationship between the victim and the defendant in breach of clause 7. The woman said that due to coronavirus lockdown restrictions the child was not in school at the time of the report’s publication but was very anxious about returning due to a fear of gossip and having been identified as the victim by the report. Lep.co.uk did not accept a breach of the Code. It said the report did not name the victim, nor give the victim’s age, address, school, or describe the victim’s appearance or any distinguishing features. It said that the report did not give the location or timing of when the crimes took place, and said that it could have happened at any point during the defendant’s life or in a variety of circumstances. It said the report neither stated, nor alluded to, a relationship between the defendant and the victim. It noted that other information was read out in court and that it deliberately chose not to include this in the report in order not to identify the victim, or the victim’s relationship to the defendant. Ipso said it recognised that lep.co.uk had taken steps to reduce the likelihood that the child would be identified as the victim. But Ipso said the report contained information heard in court regarding the circumstances in which the offences had taken place which Ipso considered was sufficient to imply the relationship between the defendant and the victim, and this was a breach of clause 7. Ipso said its decision was expressed in general terms, to avoid the inclusion of information which could identify the victim (A woman v lep.co.uk, 27 May 2021)
Case study: In 2019, Ipso upheld a woman’s complaint that a newspaper’s report of a court case had breached clause 11 of the Editors’ Code by including material likely to identify her as a victim of sexual crime. On its front page, the newspaper reported that an individual had been jailed after being convicted of sexual offences against two children. The report said that the offences had taken place over 10 years ago, stated the age of the victims during that time, and their ages now, the location in which the offences had taken place and the defendant’s and the complainant’s association with that place. The woman told Ipso that because of the report’s detail she had been identified by members of her local community as one of the victims, which had been deeply upsetting. The newspaper said that it did not believe that the detail would be likely to identify her, giving explanations. But Ipso said that the combination of these particular details represented information which would be known to the complainant’s community, particularly those who knew the defendant and the complainant, and was likely to lead to her identification as a victim in the case (A woman v Airdrie and Coatbridge Advertiser, 9 May 2019).
Case study: In 2017, Ipso upheld complaints that three Scottish newspapers had breached clause 11 of the Code because of details published in their reports of a court case. In it the defendant, named in the reports, pleaded guilty to sexual offences against a child. The details published from the case included the victim’s age when the offences began; the time period over which they took place; the circumstances in which the defendant came into contact with the victim, with reference to a specific day of the week; and the victim’s current age. Ipso said the details reported were of the kind that would be known within the victim’s community, and when reported alongside the time frame of the offences, and the victim’s age, were likely to contribute to the victim’s identification. A similar complaint about reporting of the case by Dailyrecord.co.uk was also upheld. The complaints were considered under clause 11 because the victim was an adult when the reports were published (A man v Gazette (Paisley), A man v Evening Times, A man v Paisley Daily Express, A man v Dailyrecord.co.uk, all issued 15 August 2017). It should be noted that the automatic anonymity in the Sexual Offences (Amendment) Act 1992 for victims of sexual offences does not apply for Scottish cases – see the online ch. 41 on media law in Scotland.
Case study: Ipso ruled in 2015 that the Wilts and Gloucestershire Standard breached clauses 7 and 11 of the Editors’ Code by publishing a particular, paraphrased quotation in an online report of a court case. The coverage named the defendant, a man accused of a sexual offence involving a child. He was acquitted. He complained that the quotation implied a specific connection between him and the alleged victim, and therefore identified that child. Ipso agreed, saying that the paraphrased comments which had been quoted strongly implied a specific connection. Their inclusion in the report was ‘highly concerning’ and demonstrated a significant failure on the newspaper’s part. The man also complained that the newspaper’s coverage of the case, by omitting some details in order to protect the child’s identity, presented a partial account of his conduct which was misleading, and therefore breached clause 1 of the Code, which seeks to uphold accuracy. But Ipso said clause 1 was not breached. It pointed out his acquittal had been reported and that the Code’s requirements and the law prevented publication of some information relevant to his defence (A man v Wilts and Gloucestershire Standard, 27 July 2015).
Case study: In 2015, Ipso warned the press to consider if social media sites should be used to report sexual offence cases, because of the danger that readers might post comments speculating about the identity of the victims/alleged victims. It ruled that the Dunfermline Press had not breached clauses 7 and 11 of the Editors’ Code in a report, posted on its Facebook page, of an individual being charged with sexual offences against a child. Ipso said that the newspaper was not responsible for the comments made elsewhere on social media identifying the child. But Ipso said it ‘took this opportunity to draw to editors’ attention the need for care in such cases to avoid creating a forum for speculation as to the victim’s identity’. It added: ‘While editors are not in a position to constrain the circulation of links to stories and hosted on third-party websites, consideration should be given to whether stories involving victims of sexual assault can safely be published on publications’ social media sites – particularly where they will be open to comments’ (A woman v Dunfermline Press, 27 July 2015). NB: Ch. 30 explains how ‘notice and take down’ procedure can protect a website operator from being legally liable if material posted by a reader breaches anonymity which automatic law or a court order bestowed on a person.
In the three-year period 2011-2013, the Press Complaints Commission upheld 11 complaints that newspaper or magazine articles had identified or had the potential to identify victims or alleged victims of sexual offences, some of them children. These included adjudications referred to below, and those regarding the Daily Mirror and Luton Herald and Post cases were also dealt with in law – see 11.1, above.
Case study: Police began investigating a woman’s allegation that she had been raped. The News Shopper (Bexley and North Kent) published online a photo of the site of the alleged rape – the woman’s home – and video footage showing forensic officers entering it. Recognisable shops were visible in these images, and the article named the general locality and road. The woman complained to the PCC that friends and relatives saw the coverage and contacted her about the matter. She found it inconceivable that the newspaper had not considered that her identification was a likely consequence of its coverage. The PCC ruled that clause 11 of the Editors’ Code was breached because the coverage enabled easy identification of her home, with the inevitable and distressing result that she faced inquiries from friends and family previously unaware of the incident. The PCC noted the newspaper's position that it had not been advised of the complainant's connection to the property where the alleged rape occurred, but the PCC emphasised that the responsibility for published material lay with the editor (A woman v News Shopper (Bexley and North Kent), 3 July 2013).
Case study: In 2011 the PCC upheld a complaint against the Staffordshire Newsletter because a report about a man being jailed for sexual activity with a child contained detail with potential to enable members of the public to identify the victim. The victim's grandfather complained that the report breached clauses 7 and 11 of the Editors' Code. The report named the offender, and included the child's gender, the child's age when the abuse started and the period of time for which it continued. The grandfather said the victim's identity was now common knowledge in the local community and at the child’s school. The PCC said that the newspaper was fully entitled to identify the convicted man. But it added that while each of the details reported might have seemed relatively insignificant, they had the potential to imply the connection between the accused and his victim. It took into account that the report had been supplied by an outside agency, and so the paper did not know all the case details. But, overall, the PCC ‘did not agree that the newspaper had taken sufficient care to avoid this implication’. The result has been ‘a serious, albeit inadvertent, error’ (A man v Staffordshire Newsletter, 3 May 2011).
Case study: In 2011, the PCC upheld a complaint that the Southern Daily Echo had breached clauses 7 and 11 of the Editors’ Code. In a report of a court case in which a man admitted unlawful sexual activity with a teenage girl, the paper included the victim’s age, the dates of the offence, alluded to the man's profession, identified his workplace and reported another charge against him. The girl’s mother complained to the PCC that the combination of details made the girl's peers and others in their small town aware she was the victim. The newspaper told the PCC it was at pains to avoid reporting the relationship between her and the man. The PCC said the editor had paid attention to the need to protect her, and that the paper was entitled to identify the man, but that the report included information likely to contribute to identification of the victim. The PCC was concerned in particular that the dates of the offence were included in a context which might have implied the relationship between the accused and the victim (A woman v Southern Daily Echo, 6 June 2011).
11.7.1.2 ‘Adequate justification’
Case study: Ipso has said of clause 11 of the Editors’ Code that cases where a publisher is able to establish ‘an adequate justification’ for identifying someone to the public as being a victim/alleged victim of a sexual offence are likely to be rare. It said this in 2021 when upholding a complaint from a man that an article published by thesun.co.uk had breached the clause because it identified him without his consent as having suffered a sexual assault in childhood. Ipso said there was not ‘adequate justification’ for the article to state this. The man had been convicted some years previously of serious criminal offences. The article reported on his background, his crimes and life in prison. It went on to report that according to a close friend, the man had been sexually assaulted when he was 11. Thesun.co.uk argued to Ipso that there was ‘adequate justification’ to include that he was such a victim, because that information had been disclosed by other publishers, in 1986 and in later years, and so was already in the public domain, and because the fact he had been sexually assaulted as a child might explain or contextualise his offending, and so was a matter of legitimate public interest. But Ipso said that his status as such a victim had not formed part of the prosecution or defence’s case at the man’s trial nor in subsequent appeals. It said that previous disclosures that he was such a victim had also been without his consent, and that further disclosures of that information were likely to be intrusive and distressing to him. Ipso said too that thesun.co.uk’s reference to him being such a victim had been made ‘in passing’ in the article, and that ‘there was no analysis of why this information was relevant or important’ (A man v thesun.co.uk, 11 March 2021). NB: as made clear in 11.7.1 of McNae’s, clause 11 will be breached if the identification is illegal under the 1992 Act.
Ipso accepts that if someone who claimed to be a victim of a sexual offence is prosecuted because the claim is allegedly false, there is ‘adequate justification’ under clause 11 to identify the person in reports of that prosecution. It made such a ruling after a woman charged with ‘wasting police time’ by making such a claim complained to Ipso that she had been identified in a report of the trial in which she was acquitted of the charge (A woman v The Argus (Brighton) 1 June 2018). As explained in 11.6.3 in McNae’s, it is legal to identify a person facing such a charge in a report of the relevant court case.
Case study: In 2016, Ipso ruled that clause 11 was breached by the Daily Record’s lawful identification, in coverage of a Scottish court case, of a man as an alleged victim (the complainant) of a sexual assault. In the case the woman charged with the assault – she allegedly rubbed her breasts against him at a party - was acquitted. The man complained about the Record’s report naming him. The Record pointed out that under Scottish law, he had no anonymity in law. That was because, as noted above, the 1992 Act does not apply for Scottish cases. The Record also said that it was clear the alleged offence should not have been classed as sexual assault, that in court the sheriff (judge) had criticised the Crown’s decision to prosecute the woman, and that there was ‘adequate justification’ to name the alleged victim in these circumstances. But Ipso said: ‘This justification must be a compelling one in order to outweigh the general public interest in preserving victims’ anonymity’. Ipso added: ‘The sheriff’s criticism of the decision to prosecute was insufficient to justify identification of the complainant, and it was not necessary to name the complainant in order to report this criticism’ (A man v Daily Record, 27 January 2016).
www.judiciary.uk/wp-content/uploads/2015/07/reporting-restrictions-guide-may-2016-2.pdf
Judicial College guidance, Reporting Restrictions in the Criminal Courts
www.theguardian.com/lifeandstyle/2017/dec/09/my-brother-was-held-as-a-slave-for-26-years
Michelle Rawlins’ article on a man held as a slave for 26 years