Need to add female genital mutilation – which law?
Various laws and ethical codes protect the identity of particular individuals, usually in relation to court cases or crimes. This briefing pulls together some of the circumstances in which anonymity must be protected (or lead to an unlimited fine).
For the first-year law test, you are advised to memorise the facts set out in burgundy – but not word-for-word.
For the first-year law test, you need not learn (or even read) text in pale grey
The law gives lifelong anonymity to:
- Alleged victims of sex offences
- Alleged victims of human trafficking
- Alleged targets of attempted human trafficking
- Alleged victims of female genital mutilation
The law gives temporary anonymity to:
- Children and young people appearing in a youth court (until they are 18)
- Children and young people in the adult court, if a “Section 45” order is made under the Youth Justice and Criminal Evidence Act 1999.
The law also protects the identity of:
- People protected by an order under Section 11 of the Contempt of Court Act for reasons such as national security, or protection from harm. But they are only anonymous in connection with the proceedings: in other areas of life they can be identified as long as there is no mention of the court proceedings. The protection is life-long but can be revoked by the court.
Teachers accused of crimes related to their work are also now protected by the right to anonymity – up to the point at which they are charged (see details below).
Dead people have no right to anonymity: there can be no threat to their wellbeing to justify it. Courts have no power to impose orders protecting their identity.
Under the Sexual Offences (Amendment) Act 1992, anonymity applies as soon as an allegation of a sex or human trafficking offence is made, regardless of who makes the allegation, and regardless of whether the alleged perpetrator is convicted. It applies whether the allegation is made to police, social workers or even to a journalist. Anonymity remains in place even if an allegation is later withdrawn.
“Anonymity” means nothing must be published that might identify a protected person – not just that they must not be named**. This includes information “likely to lead” to a protected person being identified, such as:
- the victim’s school or college
- the victim’s workplace
- any image – video or still*
- any other identifying details
*A silhouette or a blacked-out face may still reveal someone’s identity to another person who knows them – for instance, if they recognise the clothing being worn.
**Reporting restrictions in specific cases may specify what information must be kept out of news reports. In other instances, it is the responsibility of the media to decide what they can safely publish (and if they get it wrong, they’re in trouble).
The protection was extended to victims of human trafficking under the Modern Slavery Act 2015.
Anonymity remains in place for life in court cases, including courts martial and employment tribunals. If a victim sues the alleged perpetrator in the civil court, they still have anonymity.
Case study: A local newspaper group named two victims of sexual assault in a court report. They were fined £10,000. Publication was said to have been traumatic for the women, and involved extensive police and victim support.
Saying a victim attends a large university is unlikely to reveal their identity; giving further details, such as age and course, might narrow it down too much.
It is only necessary for some people to be able to identify them, not the wider public.
Jigsaw identification is a particular hazard. It happens when individual publications give details that, on their own, do not reveal the victim’s identity; but other publications give different details, and someone reading them all could work out the identity. It can also arise through a series of reports in a single publication.
- The local paper calls her a 20-year-old student who works in a coffee shop
- The radio station says she is an international student, studying music
- The TV station says she is a student at X University
None of the reports breach the victim’s anonymity. But put together the jigsaw, and it might be possible for some people – especially other music students – to identify her.
In court reports involving incest, some media might choose to avoid naming the defendant and say he is accused of incest; others might want to name him and say only that he is accused of a sexual offence, to avoid the suggestion his victim was related to him. In this situation, the usual approach is to name the defendant – but media organisations should check with each other.
The danger is that if some media name the defendant, and others say “incest”, people will be able to put the different reports together and work out that the victim is a relative of the defendant – enough to constitute identification.
Courts sometimes try to impose reporting restrictions orders to protect the identity of a defendant in such a case, in order to prevent risk of the victim’s identity becoming public. Courts have no power to do this and such orders should be opposed. They may impose more restrictions than is necessary.
Types of offences
The list of sex offences whose victims have anonymity is long. It includes rape, attempted rape and aiding rape, but also sexual assualt, spiking drinks in order to have sex, under-age sex, sexual grooming of children, voyeurism, and many more crimes. A full list appears in McNae’s Essential Law for Journalists (23rd edition, pages 112-114)
Trafficking offences under the Modern Slavery Act 2015 include arranging or assisting in transporting someone so they can be exploited through slavery, servitude, forced labour, or sex work; selling their organs; or forcing a child or disabled person into labour that a healthy adult would refuse.
Who is liable?
The 1992 Act says that if there is a breach of anonymity, then the publication’s editor, publisher, owner, or “any body corporate” involved in providing content, can be prosecuted.
They can offer a defence that they were not aware of the risk of a protected person being identified.
The punishment is an unlimited fine.
Anonymity for teachers
Teachers have automatic anonymity when accused of criminal offences against children in their schools – the first people in British legal history to have this protection. The anonymity ends if the teacher is charged, or the court agrees to an application to lift anonymity in the interests of justice.
The anonymity applies even if the accusation has been referred to in public – say, at an employment tribunal hearing. If you are reporting the employment tribunal, you must not refer to the fact that a person is an alleged victim of a sex offence or modern slavery (for instance).
The Daily Telegraph was fined £80,000 for a report that might have led to the identity of a sex offence victim being revealed – even though there was no evidence that it actually had been. Bear that in mind as you read about another case study:
The owner of a newspaper in Wales pleaded not guilty to revealing the identity of a victim of a sex offence on the basis that anyone who was interested “probably already knew who she was”. He also said that it was unlikely her identity had been revealed because hardly anyone read his newspaper. Do you think these defences succeeded? Read a report here – then go looking to see what happened next.
Find detailed guidance on witness protection anonymity for people involved in court cases – including witnesses – can be found on the Crown Prosecution Service website, here.
This briefing is not exhaustive. For instance, it does not give details of situations in which anonymity might be lifted or withdrawn – as in the famous case of Jill Saward, the Ealing Vicarage rape victim, who bravely gave up her anonymity so she could campaign for better treatment of victims.