Improving victims' experiences of the justice system: consultation analysis

Anonymity for complainers in sexual offence cases

This part of the consultation focussed on the recommendation within Lady Dorrian's Review in the area of anonymity of complainers in sexual offence cases. It sought views on how to bring forward legislation to protect the anonymity of all complainers of sexual crimes under Scots law, which was a Scottish Government commitment in its 2021-22 Programme for Government.

Question 34: Which one of the following best describes your view on the point in the criminal justice process when any automatic right to anonymity should take effect?

	Number of respondents	Percentage of respondents	Valid %
When an allegation of a sexual offence is made	31	45%	60%
When a person reports an alleged sexual offence to a police constable	7	10%	14%
When an accused person is formally charged by the police with a sexual offence	3	4.5%	6%
When criminal proceedings for a sexual offence first call in court	3	4.5%	6%
Other - please provide details in the box below	7	10%	14%
No response	18	26%	-

Base = 69

Option a) when an allegation of a sexual offence is made

Most respondents who answered this question (60%) indicated that they felt that an automatic right to anonymity should take effect when an allegation or disclosure of sexual offence is made.

Almost all victim/witness support organisations and most local authorities (including justice partnerships) agreed with this option. Many argued that anonymity for the complainer (and any children) should be provided from the earliest opportunity, with several indicating that anonymity could not then be provided at a later stage if names, etc. had been released earlier in the process. This was considered to be particularly acute given the use of social media:

"Anonymity should be provided automatically at the earliest point to reduce stress and trauma. Anonymity can't be given at a later date; this is particularly important due to the increased use of social media." (Local authority (including justice partnerships))

A few respondents (including a public body and an advocacy/support organisation for children and young people) stressed the need for children to be provided with immediate anonymity, and argued that this should be provided across all types of sexual offences and be relevant to all types of media (including online and social media).

It was felt that not providing such anonymity could act as a barrier against a victim coming forward to report offences, whereas providing anonymity from the outset would support them through the criminal justice system:

"We believe victims should be anonymous from the very beginning - victims need to feel safe. Not having a right to anonymity will make victims even less likely to come forward. You would be terrified to report then go to court, knowing people would know who you are. It can feel like the victim is under attack and there would be a lot of stress being known publicly." (Other (third sector))

It was also argued by several respondents, (largely from victim/witness support organisations), that anonymity was required at this stage because not all disclosures or allegations will be made to the police or the criminal justice system in the first instance:

"We submit that the right to anonymity should take effect from the moment an allegation is made. This should not be reliant on the disclosure being made within the context of the criminal justice system alone. There is suggestion that the right could begin when the survivor reports to a police officer, but we would suggest that we need to recognise that survivors, who choose to disclose, will do this in a number of different ways and for some, the criminal justice system is not the most appropriate forum for this." (Victim/witness support organisation)

A few also commented that option a) was the most trauma-informed approach.

One legal organisation also preferred this option as it was in line with the provision for England, Wales and Northern Ireland, as well as the Lord Justice Clerk's Review Group (Lady Dorrian's Review) recommendations.

However, a few sought further clarity on the definitions and practicalities of anonymity within the criminal justice process from the time that an allegation is made. Specifically, respondents questioned at which point an 'allegation' would be considered to have been made when a victim first makes disclosures to a victim support organisation (and not the police or criminal justice sector).

At other stages (Options b) to e))

Those who favoured option b) (i.e. when a person reports an alleged sexual offence to a police constable) largely did so due to the practicalities around providing anonymity. It was felt that this provided a sensible and deliverable point when anonymity could be provided within the formal process, with one respondent noting that disclosures made to any other bodies previously would most likely be covered by confidentiality and anonymity agreements in any case:

"We are of the view that a right of anonymity in the criminal justice process can't take effect until an alleged offence is part of a criminal justice process. That doesn't happen until an alleged offence is reported to a police constable. Any contact with health services prior to reporting to the Police would already be private and anonymous." (Public body)

None of those who selected option c) (i.e. when an accused person is formally charged by the police with a sexual offence) provided any qualitative comments to explain their reasoning, and only one respondent who selected option d) (i.e. when criminal proceedings for a sexual offence first call in court) provided further comment. This respondent noted the practicable nature of this stage in the proceedings, highlighting it as a definable point in time and a matter of public record which provides a safety check for publicists.

All seven of those who selected option e) (i.e. 'other') provided qualitative comments, however, these were all unique with no key themes or issues being identified. Two individuals felt that anonymity should be provided for all involved, at least until conviction, and a few repeated issues above, such as victims preferring to make disclosures to a support organisation (or the use of Third Party Reporting).

Question 35: Which of the following options describes the offences that you consider any automatic right of anonymity should apply to?

	Number of respondents	Percentage of respondents	Valid %
Offences contained at section 288C of the Criminal Procedure (Scotland) Act 1995	34	49%	85%
Intimate images offence contained at section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016	34	49%	85%
Offences contained in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005	36	52%	90%
Other	9	13%	23%
No response	29	42%	-

Base = 69

Of the 41 respondents who provided an answer at this question, 33 (80%) selected all of the first three options.

Organisations largely argued that all complainers of any type of sexual offending should be afforded the same protections, regardless of the specific category of the offence:

"Sexual offending encompasses a wide range of crimes. We contend that all complainers of sexual offending should be afforded the same protection. In our view it would seem nonsensical to afford anonymity to only one category of persons when the issue it is seeking to address affects complainers across the sexual offences spectrum." (Legal Organisation)

It was felt that automatic right to anonymity should apply to all of options a) to c) in order to capture a range of highly sensitive offences beyond the 'sexual offence' category:

"This would extend protection beyond purely 'sexual offences' and additionally provide protection in cases where the nature of the offence is similarly highly sensitive e.g. disclosure of intimate images." (Other (academia))

While they generally supported the inclusion of all three elements provided as options at this question, around half of the victim/witness support organisations (and most of those who commented at this question) suggested that there was also a need for a "catch all" provision to ensure automatic anonymity could be applied in all relevant cases with a sexual element, regardless of whether they were specifically named in the legislation. They (and others) also suggested a few other additions, including offences contained within:

• Section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 in order to recognise image based sexual abuse
• the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
• Section 52 of the Civic Government (Scotland) Act 1982.

A few organisations also advocated for domestic abuse cases to be provided with similar considerations and protections.

Question 36: Which one of the following best reflects your view on when any automatic right of complainer anonymity should end?

	Number of respondents	Percentage of respondents	Valid %
Upon the death of the complainer	15	22%	36%
No automatic end point	18	26%	43%
Other	9	13%	21%
No response	27	39%	-

Base = 69

Responses to this question were somewhat mixed, with 43% of those who answered the question favouring no automatic end point, 36% supporting the point of death of the complainer and 21% supporting other options.

Option a) upon the death of the complainer

While 10 respondents provided a comment in support of maintaining the automatic right of complainer anonymity until the death of the complainer, only six explained their reasons for supporting this. These reasons were disparate, as follows:

• it upholds anonymity for the complainer in order to protect the victim, but defaults to the important principle of open justice upon the complainer's death
• it would be consistent with other privacy and personal data protection laws
• it honours the important movement to make visible the potential legacy of sexual violence
• it is an easily ascertainable point in time and represents a natural end point
• one respondent supported the reasons outlined in the consultation document.

Two respondents argued that to maintain anonymity indefinitely could create several unintended consequences, including difficulties in certain cases, and for surviving family members who may wish to discuss the case. Three respondents also noted that the removal of automatic anonymity upon the complainer's death was required for historians and recording history.

Option b) no automatic end point

Those who supported there being no automatic end point (and who gave reasons why) generally felt that anonymity could and should continue indefinitely. It was felt that removal of anonymity after death might be against the complainer's wishes and/or could negatively impact surviving family members. Rather, most argued that anonymity should be complainer led:

"We would be keen to see a person-centred, trauma-informed approach being taken to this issue. As such, complainer's should be offered a choice about when any automatic right of complainer anonymity should end. The decision about any automatic end point should be made by the complainer themselves." (Other (third sector))

One organisation suggested that the need to name complainers after their death could be managed by the court, and therefore implementing a fixed date to end automatic anonymity was not required.

Option c) Other

Several of those who selected option c) also felt that the ending of anonymity should be complainer led and/or handled on a case-by-case basis.

Other timings suggested included "upon conviction" and "one year after the death of the complainer", with flexibility for this to be shortened or extended based on the family's wishes. Indeed, two respondents suggested that the court should determine if and when to end anonymity for complainers to ensure the needs of all parties were balanced. However, one respondent indicated that, where similar arrangements were prevalent in other areas, this had caused financial and emotional difficulties for families when trying to remove the anonymity requirement.

Question 37: To what extent do you agree or disagree that the complainer should be able to set their anonymity aside?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	34	49%	71%
Somewhat agree	10	15%	21%
Neutral	1	1.5%	2%
Somewhat disagree	1	1.5%	2%
Strongly disagree	2	3%	4%
No response	21	30%	-

Base = 69

Overall, most who answered this question either strongly agreed (71%) or somewhat agreed (21%) that the complainer should be able to set their anonymity aside.

Both individuals and organisations who agreed that the complainer should be able to set aside their anonymity generally argued that this was a decision for the complainer and that they should be able to speak out about their situation if they wanted to. It was highlighted that to enforce anonymity on a complainer was to apply further controls and could be perceived as silencing victims, while some survivors found it empowering to speak out publicly, reclaiming their autonomy and voice, with it also being helpful to others going through similar experiences:

"To retain or waive anonymity should be the right of every complainer. That is not a decision to be taken by anyone else." (Other (campaign))

While still advocating for the complainer's ability to choose, two organisations did stress the need for informed consent in such situations to ensure that complainers were fully aware of the possible impacts/consequences of setting aside their anonymity. Another two indicated that the timing allowed for complainers to set aside their anonymity, the processes for doing so, and the safeguards that may need to be put in place would need to be explored.

A few organisations also felt that complainers should be able to set aside their anonymity without the need for judicial interventions or authority, which they argued added an unnecessary administrative, financial and emotional burden on the complainer.

A few additional caveats were highlighted, including that:

• this should only apply to adult complainers, and those with capacity to make such decisions
• complainers needed to fully understand the possible implications of setting aside their anonymity
• it should not affect any dependents/vulnerable individuals or other complainers also attached to the case.

Only two respondents (both individuals) provided comments indicating disagreement with this proposal. One felt there was the "basic right" for complainers to be challenged, while the other argued that "complainers have used this to prejudice the justice system" (Individual).

Question 38: If complainers are to be given the power to set their anonymity aside, which one of the following best reflects your view on how they should be able to do this?

	Number of respondents	Percentage of respondents	Valid %
Unilaterally by consent of the complainer	30	44%	65%
Following an application to the court by the complainer	10	15%	22%
Other	6	8%	13%
Not Answered	23	33%	-

Base = 69

Two thirds (65%) of those who answered the question felt that, if complainers were to be given the power to set their anonymity aside, this should be unilaterally by consent of the complainer.

Option a) unilaterally by consent of the complainer

As with the preceding question, several respondents suggested that the complainer should be able to waive their anonymity without having to apply to the court, with one suggesting that if an acceptable time is set out in legislation (e.g. at the close of the court case), then an application to the court would be unnecessary. Others felt that including a requirement to apply via the courts for this would be cumbersome, placing administrative and/or financial burdens on complainers, and would not be in keeping with the process for other complainers:

"We consider that an application to the court to waive anonymity would be an unduly cumbersome process which complainers for non-sexual offending are not subject to." (Legal organisation)

A few also suggested that making survivors of sexual assault request permission from the court to talk publicly about their experiences would further undermine victims' autonomy (especially women), and could result in women being sanctioned:

"It could be considered as further undermining women's autonomy if they were required to go to the court and ask permission before saying in public that they experienced sexual violence and this also suggests that where such a requirement was introduced, then women who discussed their experiences online, or through any other medium would face some form of sanction from the court and possibly prosecution, which would be unacceptable." (Victim/witness support organisation)

Other comments made by just one or two respondents each included:

• that they are old enough and competent enough (presumably in the case of adult complainers) to make an informed decision on the matter
• that only complainers should have the power to set their anonymity aside, and they should be empowered to do so if they wish
• complainers should be free to identify themselves through their own social media, without restriction
• written consent should be obtained by any publisher, for example, the media, and ample time should be provided for the complainer to consider the consequences
• complainers should have control over what information they release, media companies should not then seek to uncover additional details.

Option b) following an application to the court by the complainer

The main reason respondents gave for supporting option b) was to provide necessary and unbiased checks and safeguards, both for the individual complainer and for anyone else involved in the case:

"Some limited oversight by the court would allow any issues of the complainer's capacity to be assessed. This would also allow the court to consider the impact of setting aside a complainer's right to anonymity on the privacy of any other complainers involved in the same or associated case(s). Oversight by the court would also provide some safeguards to protect complainers from exploitation or undue pressure when considering setting their anonymity aside." (Other (academia))

One respondent also noted that this approach would be in line with other jurisdictions, namely New Zealand.

Option c) other

Two respondents suggested that another body/organisation, other than the court, could support complainers when considering whether to set aside their anonymity. One felt that an advisory type service could be used to ensure that complainers were able to discuss their decisions and understand possible consequences, while another suggested that the complainer should discuss the issue with the police or procurator fiscal in order to ensure there was no risk of inadvertently identifying other victims/complainers in the case.

One individual felt that the court and medical professionals should be required to undertake "due diligence" to ensure that the complainer was "deemed fit to proceed" with the decision to set aside their anonymity and so that no vulnerable individual made an uninformed decision which they may later regret.

Question 39: To what extent do you agree or disagree that children should be able to set any right to anonymity aside?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	5	7%	11%
Somewhat agree	12	18%	27%
Neutral	3	4%	7%
Somewhat disagree	15	22%	34%
Strongly disagree	9	13%	21%
No response	25	36%	-

Base = 69

There were very mixed responses to both the closed and open elements of this question.

The dominant view was that such decisions should be dealt with on a case-by-case basis, taking into account the age, stage and capacity of the child/young person, while also ensuring they were supported in making such a decision:

"If children wish to waive their right to anonymity, consideration should be given to their age and support that they may need to make an informed choice." (Victim/witness support organisation)

Individuals and organisations of various different types who disagreed, argued that children were too young and lacked capacity to make such decisions or to fully understand the possible consequences of setting aside their anonymity in such cases. Respondents were concerned that this would leave children open to coercion and exploitation, and felt that children should be subject to safeguarding and protection:

"Children do not have the capacity of foresight or maturity to be able to fully understand the potential harm such disclosure could have on themselves and their families for the remainder of their lives. This would leave them open to serious re-exploitation by tabloid / sensationalist media platforms. The potential for harm far outweighs the benefits." (Individual)

Several victim/witness support organisations also argued that this would depend on the best interests of the child, however, expressed doubts that this could ever be considered to be in their best interests:

"…it is hard to see how it would ever be considered in a child's best interests to be publicly named as a victim of sexual violence when we know that information will be available online more or less permanently, even taking the availability of the "Right To Be Forgotten" application process into account." (Victim/witness support organisation)

One academic organisation was also concerned that allowing children to waive their own anonymity could have implications and consequences for others which needed to be considered and protected, including the accused/victim who might also be a child, their families, etc. whose anonymity may also be compromised with such disclosures.

One public body, however, noted that while they were against allowing children (which they considered to be anyone under the age of 18) to set aside their anonymity, they did feel that, after a person turned 18 and was considered an adult, they should be allowed to discuss their experiences as a child should they wish to.

Several respondents among both those who agreed and disagreed felt that discretion may be required for those in older age brackets (typically those aged 16-18), and that they should perhaps be able to make their own decisions. Such respondents included individuals, legal organisations, academic organisations, and an advocacy/support organisation for children and young people. One legal organisation noted that this aligned with the age of consent, while an academic organisation similarly argued that those aged 16 and over were treated as adults in other aspects and so the same should hold true here.

Question 40: If children are to be given a power to set any right of anonymity aside, to what extent do you agree or disagree that additional protections should be required prior to doing so, for example an application to the court to ensure there is judicial oversight?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	23	33%	59%
Somewhat agree	7	10%	18%
Neutral	6	9%	15%
Somewhat disagree	2	3%	5%
Strongly disagree	1	1%	3%
No response	30	44%	-

Base = 69

Again, there were very mixed responses with regards to whether judicial oversight would be needed in relation to children and young people, however, more than half who answered the question (59%) strongly agreed and a further 18% somewhat agreed.

Generally it was felt important that, if such provision was to be made, then there should be judicial oversight of the process to ensure the child understood the implications and potential consequences, that they were making a fully informed decision, and to be able to provide safeguards against coercion and exploitation. One respondent (from law enforcement) and another (from a local authority/justice partnership) also felt that some measure was required (such as judicial input) to ensure that the rights of all those involved were considered.

A range of different suggestions were made by respondents regarding what elements may be required, including:

• an application to a judge
• having diverse and multi-agency input to consider the application
• the court should apply a welfare checklist and a best-interests approach when making decision on this
• a safeguarder should be appointed for the child and any necessary social work assessments completed
• the decision should only be supported following in-depth assessments from professionals such as psychologists
• the child should have access to independent advocacy and advice
• a legal guardian should be required.

One legal organisation, while supportive of the need to have additional protections in place, such as an application to the court, did highlight the practical difficulties in enforcing such a situation and the limitations this would have. They noted that young people could publish information which identified themselves via social media and that it would be unlikely that the court or COPFS would bring criminal proceedings against a child where there had not been a court application made in advance:

"…any child with a smartphone or other internet enabled device can publish their identity as the victim of a sexual offence to a wider audience than would be available to any Scottish newspaper. In practical terms, it is difficult to see how a child could be precluded from broadcasting to their immediate social circle, or a far wider audience, that they were the victims of a sexual offence. [We] note that it is unlikely that the legislature or the Crown would consider it appropriate to bring criminal proceedings against a child who unilaterally set aside their anonymity without there having been an application to the court. In these circumstances, [we] note that there may be little practical effect in requiring a child to make an application to the court." (Legal organisation)

Again, several respondents reiterated that they did not think that children should be able to set aside their right to anonymity, while a few argued that those in older age groups, i.e. age 16 and over should be able to unilaterally waive their right to anonymity without the need for judicial oversight.

Only two of the three respondents who disagreed with this proposal provided further comment, with one suggesting that if the child had suitable support in place then judicial oversight should not be necessary, and the other felt that "no one should be held back against their will by a judge" (Individual).

Question 41: If children are to be given a power to set any right of anonymity aside, to what extent do you agree or disagree that there should be minimum age below which a child cannot set their anonymity aside?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	13	19%	33%
Somewhat agree	7	10%	18%
Neutral	14	20%	35%
Somewhat disagree	5	7%	12%
Strongly disagree	1	2%	2%
No response	29	42%	-

Base = 69

Mixed responses were provided not only to the closed question but also the open question, with some indication that there may have been different interpretation of what was being asked. Some understood this to mean where no judicial oversight or safeguards would apply, while others caveated their responses or assumed that such safeguards would apply, particularly for younger age groups.

Where specific age limits were offered, these included:

• two respondents who felt the age limit should be set to 12, in line with criminal responsibility (albeit with safeguards in place to ensure the child is fully informed, supported and not being coerced into the decision)
• six respondents who felt the age limit should be set to 16, in line with the age of consent
• seven respondents who felt the age limit should be set to 18, in line with the UNCRC (although a few did suggest that if it was to be set to 16 or 17 or there was to be any consideration below age 18, this would require judicial oversight and safeguards).

Seven respondents argued that setting an arbitrary age limit was less appropriate than considering the child/young person's stage of development, maturity and capacity to make such decision and understand the consequences.

A few (mostly from victim/witness support organisations) felt this needed to be given more thought, with views sought from those experienced in the field of child development.

Again, a few respondents indicated that they did not think this should happen.

Question 42: To what extent do you agree or disagree that the court should have a power to override any right of anonymity in individual cases?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	5	7%	12%
Somewhat agree	11	16%	25%
Neutral	4	6%	9%
Somewhat disagree	5	7%	12%
Strongly disagree	18	26%	42%
No response	26	38%	-

Base = 69

This question attracted an organisational split in opinion with all legal and law enforcement organisations who provided a response agreeing with this proposal, while all victim/witness organisations who answered the question disagreeing.

Again, there appeared to be different interpretations of this question, with some respondents understanding this to mean the court would be able to publicly identify people, while others interpreted this as the court refusing to allow an individual to identify themselves.

A range of circumstances where respondents felt it might be suitable for the court to override any right of anonymity were outlined. Three respondents felt this should be possible when one person's decision would impact negatively on someone else - it was felt important for the court to balance the rights of all those involved. Three other respondents felt a court should be able to override the right of anonymity where it was felt that an individual lacked capacity to take such a decision and fully understand the implications. Three respondents also felt that this would be important either for public protection, where it would be in the public interest, or to intervene when disclosures would not be not in the public interest or could present a threat to national security.

Other scenarios mentioned by one respondent each, included where:

• it is needed to get other victims to come forward for corroboration
• a complainer is subsequently convicted of an offence against justice itself and where there is public interest in making their identity known to allow people affected to consider remedies available to them
• a complainer has made a false allegation
• it would serve justice
• those involved "who were given anonymity no longer 'qualify'"
• where there are strong grounds demonstrating specific reasons that the applicant's defence or appeal is highly likely to be substantially prejudiced.

One respondent also suggested that a potential model for this could be found in section three of the Sexual Offences (Amendment) Act 1992, while another suggested that the approach to ending complainer anonymity should be in line with that in England and Wales.

One legal organisation felt that such provision for the court to override any right of anonymity was unlikely to be required and would undermine the benefit of the provision of anonymity, although they suggested that it might be useful to obtain information on the frequency with which the English courts have been asked to (or have) overridden the right to anonymity:

"We would find it difficult to envisage circumstances in which an application of the sort mentioned might be granted. We find it equally difficult to envisage circumstances in which the court might give effect to the general right given to it. We therefore doubt whether there is a need for a dispensing provision, the presence of which would inevitably undermine, to some extent, the benefit of a prohibition." (Legal organisation)

Nine victim/witness support organisations (who disagreed with the proposal), plus one third sector organisation argued that this should in no way be possible to build defence evidence, or where there was a not proven or not guilty verdict. They argued that no one should have the right to remove anonymity from victims, and that allowing this would undermine victims' trust and confidence in the justice system, make them less likely to come forward, and would increase the trauma and fear experienced during the court process. It was also stressed that these individuals were likely to be vulnerable or could be deemed to be 'at risk':

"Anonymity should not be set aside by the court to secure defence evidence, nor should it be set aside if the survivor withdraws from proceedings or there is a not guilty/ proven verdict. The court should be hesitant about removing anonymity even in the rare cases of offences of perverting the course of justice as they may involve women deemed to be at risk in any event." (Other (third sector))

Other organisation types (including a children and young people's advocacy/support organisation, and a local authority/justice partnership) concurred with the victim/witness support organisation views above. Meanwhile, one campaign organisation argued that adult complainers should be solely responsible for deciding whether to waive their anonymity and one advocacy/support organisation suggested that removing a victim's/complainer's anonymity could do significant harm to the individual.

One individual also agreed with the victim/witness support organisation views above, arguing that such disclosures are often used to undermine the credibility of the victim/witness. Another individual also argued that victims do not have their own legal representation in court to protect their interests.

Question 43: To what extent do you agree or disagree that any right of anonymity should expire upon conviction of the complainer for an offence against public justice?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	2	3%	5%
Somewhat agree	8	11%	19%
Neutral	13	19%	31%
Somewhat disagree	6	9%	14%
Strongly disagree	13	19%	31%
No response	27	39%	-

Base = 69

Respondents who agreed with this proposal (and a few who were neutral) varied between those who felt this was a reasonable provision, to those who felt a conviction should overrule the right to anonymity, to others who felt this should be decided on a case-by-case basis. Those who argued for the issue to be decided on a case-by-case basis noted that later convictions may be unrelated to the case where they were the complainer, or that the individual may have additional needs or vulnerabilities which needed to be considered, and therefore a blanket approach was inappropriate.

One legal organisation, whilst in agreement with the proposal, suggested that the intimation of an appeal should mean that anonymity remains in place until the conclusion of the appeal process.

Others who were neutral either requested more information about how this might work in practice and where such conditions might apply.

A few victim/witness support organisations, individuals and other organisations cautioned that 'false allegations' in rape cases are extremely rare and that often such complainers are vulnerable people. A few also argued that complainers could be coerced into changing their statements or dropping charges, and that removing anonymity would act as a punishment towards victims. One individual also argued that publicly disclosing the information would perpetuate the image that women bringing false allegations is common when, in reality, it is not. Another individual argued that such disclosures would make it harder for other victims/complainers:

"I think naming them would fit in to a narrative where they would be "blamed" for false allegations and this could have a negative impact on those of us giving truthful accounts." (Individual)

One local authority/justice partnership also raised concerns that the threat of removing anonymity may act as barrier to complainers coming forwards.

Question 44: Which one of the following best reflects your view of the level of maximum penalty that should apply to a breach of any right of anonymity?

	Number of respondents	Percentage of respondents	Valid %
Up to 2 years' imprisonment and/or an unlimited fine	14	20%	44%
An unlimited fine	1	1%	3%
Up to 12 months' imprisonment and/or a fine of up to £10,000	7	10%	22%
Other	10	15%	31%
No response	37	54%	-

Base = 69

Again, this question attracted a mixed response.

Option a) up to 2 years' imprisonment and/or an unlimited fine

Those who supported a penalty of 'up to 2 years' imprisonment and/or an unlimited fine' argued that such a breach was a serious issue with potentially far reaching and long lasting consequences and, as such, there should be a serious penalty. This was seen as needed to send a message about how important maintaining anonymity should be, to act as a sufficient deterrent and a punishment:

"A deliberate breach of the right of anonymity can amount to a serious attack on the administration of justice. It may also have a far reaching impact on a complainer, and the victims of crime more generally. In such circumstances, prosecution on indictment may be appropriate. The court should have the ability to mark the seriousness of such conduct with a meaningful custodial sentence." (Legal Organisation)

One legal organisation who supported this option also noted that this was in line with penalties for breach of a court order and/or contempt of court provisions.

Option b) an unlimited fine

Only one respondent (a victim/witness support organisation) preferred that the penalty should be 'an unlimited fine'. They felt that unlimited fines would be important in providing a deterrent and tackling breaches perpetrated by large media firms or others with significant financial means. However, they felt that any harm that might occur from the breach could likely be dealt with by a custodial sentence via other charges:

"The fine should primarily deter and prevent breaches, however in terms of a punitive measure imprisonment is a significant cost to society whereas fines could be reinvested in improving services - so it makes sense from a practical perspective." (Victim/witness support organisation)

Option c) up to 12 months' imprisonment and/or a fine of up to £10,000

Those who preferred a penalty of 'up to 12 months' imprisonment and/or a fine of up to £10,000' provided mixed reasons for this. One individual felt that breaches of anonymity should be treated as seriously as contempt of court or breach of a court order. Another individual felt that the fine should be proportionate to the amount that the individual could afford to pay, with the proceeds of such fines being distributed across all organisations that support and advocate for victims of sexual abuse/offences. One academic organisation who supported this option argued that the most important aspect would be the statutory underpinning of anonymity, and again argued that alternative sentences could be sought if the breach was part of a wider campaign of harassment, etc.

Option d) Other

Views were also mixed among those who identified 'other' penalties as their preferred option. Four victim/witness support organisations felt that the extent of the penalty would depend on whether the breach was prosecuted under summary or solemn procedures, with three suggesting that options a) and b) should apply in solemn proceedings and c) in summary proceedings. A campaign organisation also indicated that breaches should be dealt with via summary criminal proceedings or contempt of court, meaning that either options a) or c) could be used.

A few respondents (from a mix of profile groups) felt the penalty would need to depend on the nature of the case, the nature of the breach, and the impact the breach had on the individual. One individual was undecided, while another wanted to see "imprisonment of 6 months to 3 years and a fine not exceeding 50% of total wealth" (Individual). One campaign organisation felt the penalty needed to be proportionate to the nature of the person who committed the breach.

Question 45: To what extent do you agree or disagree that there should be statutory defence(s) to breaches of anonymity?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	10	15%	29%
Somewhat agree	8	12%	23%
Neutral	12	17%	34%
Somewhat disagree	3	4%	9%
Strongly disagree	2	3%	5%
No response	34	49%	-

Base = 69

Just over half of those who answered this question either strongly agreed (29%) or somewhat agreed (23%) that there should be statutory defence(s) to breaches of anonymity. Just over a third (34%) gave a neutral response.

Of those who agreed with this proposal, 10 provided qualitative comments. A few felt that the creation of statutory defences to breaches of anonymity provided a pragmatic response, and argued that this was necessary to deal with real life situations and the realities of modern life. One legal organisation also suggested that strict liability should only be created in the most exceptional circumstances.

A few organisations (mostly legal and law enforcement organisations) agreed this would be a positive step, providing clear guidelines for what would and would not be a suitable defence of such breaches. Although, one did argue that breaches would still need to be dealt with on a case-by-case basis:

"We consider that placing the defence(s) on a statutory basis would provide clarity regarding the situations in which a defence can be proffered. For example, in cases where the complainer had waived their right to anonymity." (Legal organisation)

While agreeing that statutory defences should be allowed, one victim/witness support organisation also suggested that a zero tolerance approach should be taken where breaches occur in order to provide a deterrent in future:

"We would also argue that there should be a zero-tolerance policy adopted where the law regarding breaches of anonymity has been broken. The only way to curb such practices, especially on social media platforms is to pursue breaches rigorously." (Victim/witness support organisation)

Two organisations (a local authority/justice partnership and a victim/witness support organisation) who were neutral about the proposal focused their response on published materials, suggesting that clear written consent should be needed:

"Clear written consent should be given before any publisher produces material that may identify the complainer. This consent should contain detail of what is permitted to be shared in the public domain." (Local authority (including justice partnerships))

One individual felt that further consideration would be needed to ensure that all relevant parties could be protected, while another argued that more information was required around what an 'acceptable breach' would look like.

Those who disagreed mainly argued that there should not be any excuses for breaching anonymity. One individual acknowledged that some people would unknowingly commit a breach, however, they still felt that there should be consequences for this. One advocacy/support organisation raised concerns that allowing/accepting defence of such actions could result in an increase in breaches.

Question 46: If you agree that there should be statutory defence(s) to breaches of anonymity, which of the following best reflects your view of the defence(s)s that should operate?

	Number of respondents	Percentage of respondents	Valid %
Adopt the model of the Sexual Offences (Amendment) Act 1992 in England, Wales and Northern Ireland	10	14%	45%
A 'reasonable belief' defence	11	16%	50%
Other	4	6%	18%
No response	47	68%	-

Base = 69

Of those who agreed with option 'a) adopt the model of the Sexual Offences (Amendment) Act 1992 in England, Wales and Northern Ireland', two felt that this was more consistent with their belief that complainers/victims should be able to waive their right to anonymity. One of these respondents felt this struck a good balance between the need to protect anonymity and not over-criminalising others, while the other felt that the complainer's right to waive their anonymity also meant that written consent ahead of publication should not be required.

One law enforcement organisation stated that existing case law should exist for this option, which would be useful in providing clarity in establishing such a defence, while a legal organisation concurred that the 1992 Act provided a 'tried and tested' approach. Another legal organisation argued that this would provide consistency across the UK and it provided a greater degree of certainty and simplicity of understanding compared to a 'reasonable belief' defence.

One victim/witness support organisation also felt that the 1992 Act was more robust that the alternative option of 'a reasonable belief defence':

"We do not agree with a general defence of reasonable belief in a defence to a charge that the person believed the victim of crime had consented to publication. Whilst it would be more onerous for social media/online applications to identify whether the victim of crime had consented to waive their right to anonymity, we believe that the importance of factual accuracy of these matters is extremely important and the relevant legislation in the 1992 Act is more robust." (Victim/witness support organisation)

One respondent who preferred option 'b) a reasonable belief defence', argued that the 1992 Act could unfairly penalise publishers who repeat information, where they have relied in good faith on the appropriateness of the original publication:

"The English approach, requiring written consent, appears overly narrow. It would seem to suggest, for example, that if a publisher infringes a person's right to anonymity then another person who repeats that information, relying in good faith on the initial publication, has no defence. It might therefore follow, for example, that if a newspaper were to infringe a person's right to anonymity then individuals who in good faith posted links to that publication on social media would be guilty of an offence, which seems an unduly broad application of the criminal law and applies it to circumstances where no deterrent effect could be achieved." (Other (academia))

Three respondents indicated that they would prefer c) an 'other' defence. One individual indicated that they were neutral on this point, while the other two individuals repeated their response from Question 45 above. One felt that further consideration was required protect all relevant parties, while the other felt that all breaches should suffer a penalty, with the nature and severity of the penalty being dependent on the intent behind the breach.

Two respondents who did not provide a response at the closed element of this question did provide qualitative comments. The first argued that there should not be any statutory defences to breaches of anonymity, while the other felt there should be a common approach to this across the UK.

Question 47: Are there any other matters relating to anonymity for complainers in sexual offence cases that you would like to offer your views on?

Eleven respondents provided additional comments/views in relation to anonymity for complainers in sexual offence cases.

Just one key area was discussed by a few respondents (two victim/witness support organisations and a local authority/justice partnership) namely that provisions for anonymity must be strong enough that identification is not possible via a 'jigsaw' process, i.e. where enough is published to put together their identity.

Other issues discussed by one respondent each included:

• the need for guidance for news publications, for example, that they should not pressure victims/complainers to waive their anonymity
• anonymity should be provided for all parties, not just the complainer
• to stress the importance of enshrining this right in law and not relying on convention
• highlighting the long-term impact that the sharing of personal details in court can have on a victim, when the perpetrator may not have known this information (for example where they are a stranger)
• highlighting that even abbreviated information (such as the use of initials or details of their area of residence) can make someone identifiable
• that there should be no process to override anonymity for those under 18.

One respondent also expressed a view that, as victims gained confidence in the justice process, more people would come forward to report crimes.

One final respondent discussed the issue of complainer anonymity at length, suggesting that this was needed to protect privacy rights. They argued that the current system whereby a complainer needs to seek a court order to protect their anonymity causes delays in the provision being granted and financial burdens for complainers:

"Making complainers responsible for seeking such an order creates two problems. First, there is a potential window in which a complainer could be identified. Second, it imposes unnecessary economic and social costs on complainers, requiring them to instruct lawyers, potentially secure legal aid, and carry the administrative burden and emotional uncertainty associated with that process." (Other (campaign))