Why Don't Sexual Offence Complainers Have a Right to Anonymity in Scotland?

DOI10.3366/elr.2020.0658
Pages427-434
Published date01 September 2020
Date01 September 2020
INTRODUCTION

The prosecution of Alex Salmond on one count of attempted rape and thirteen counts of sexual assault in respect of ten complainers was always likely to stress-test aspects of our criminal justice system. The case represented the most high-profile sexual offences trial of the most high-profile person in modern Scottish legal history. Whatever the outcome, the identities of the complainers in this case were inevitably going to be the subject of intense press, political and public curiosity. The legal limits surrounding what could be published about their identities were always likely to be tested.

This article argues that the legal protection of complainer anonymity in sexual offence prosecutions in Scots law is nowhere near as robust as it should be. Despite popular misconceptions that sexual offence complainers are automatically given lifelong anonymity “under UK law”, and can only be named in social media or print if they decide to “waive their anonymity”, this article shows that complainer anonymity in Scotland generally relies – not on the force and sanctions of criminal law – but on journalistic restraint, professional regulation, and the general tweeting public being ignorant of the fact that identifying sexual offence complainers remains perfectly lawful in most cases. I argue that the Scottish Parliament should reform this aspect of our criminal procedure as a matter of urgency to place complainer anonymity on a surer legal footing, to give complainers meaningful reassurances that their anonymity will be respected.

SCOTTISH CRIMINAL JUSTICE: AN EVOLVING MEDIA AND REGULATORY LANDSCAPE

As recently as a decade ago, access to information about active court proceedings remained substantially mediated by traditional forms of media, in print, on TV and on the radio waves. This mediation was regulated – not just by law – but also by the professional and ethical preoccupations of journalists creating and reporting content. Reflecting their trade and training, this was also often informed by legal advice. Since the mid-2000s, the internet has transformed anybody with a smartphone or a laptop into a publisher with potential global reach. Social media platforms such as YouTube, Facebook and Twitter have not only challenged traditional media paradigms: they have also challenged traditional legal paradigms of the media, and how the law imagines its interactions with journalists and ordinary people with thumbs, opinions, fourteen Twitter followers, and no sense of restraint. The law in this area has, once again, proven slow to catch up with technological change.1

COMMON MISCONCEPTIONS ABOUT COMPLAINER ANONYMITY

In terms of the mainstream press, the understood proprieties on reporting sexual crime are clear. As the Independent Press Standards Organisation's (“IPSO”) Guidance on Reporting Sexual Offences states:

All victims of sexual offences, including children, are automatically guaranteed anonymity for life from the moment they make an allegation that they are the victim of a sexual offence. A victim is guaranteed anonymity even when someone else accuses the defendant of the offence. In Scotland, the law is different but the practice of respecting anonymity is the same.2

The IPSO Guidance fails to amplify the critical legal distinction: not only is Scots law different on this point from England and Wales, but Scottish publishers are not required by law to respect the anonymity of sexual offence complainers, nor are they generally exposed to criminal sanctions for breaching that anonymity. Voluntarily withholding information on the grounds of professional ethics is not the same as being subject to a legal prohibition on publishing it, and critically, unaffiliated YouTubers, bloggers or tweeters are not subject to the complaints jurisdiction governing mainstream newspapers or broadcasters. Scottish public life seems blissfully unconscious of the legal insecurity of complainers’ rights to anonymity
COMPLAINER ANONYMITY IN SCOTLAND: THE LAW

Read from the Scottish perspective, the legislative scheme for victim anonymity may seem initially confusing. The Sexual Offences (Amendment) Act 1976 (“1976 Act”) introduced the UK's first provisions on complainant anonymity in sexual offence cases. The modern law is expressed in the Sexual Offences (Amendment) Act of 1992 (“1992 Act”). Neither the 1976 nor the 1992 Act initially extended to Scotland, “except so far as it relates to courts-martial and the Courts-Martial Appeal Court”.3 The anonymity these Acts provided for was also jurisdictionally circumscribed, only restricting the publication of a complainant's name, address, or picture in a “written publication” or “relevant programme” to be broadcast in England and Wales...

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