Improving victims' experiences of the justice system: consultation

Chapter Five: Anonymity for complainers in sexual offence cases

Background

This part of the consultation explores one of the recommendations within Lady Dorrian's Review in the area of anonymity of complainers in sexual offence cases.

The issues discussed in this chapter include:

• enshrining into Scots law an automatic right to anonymity for complainers in sexual offence cases
• the offences an automatic right to anonymity should apply to
• when such a right might start and end
• what circumstances may lead to the right being set aside
• what the available defences and penalties would be if someone breached a complainer's anonymity

The proposals in this consultation are being considered in the context of seeking to improve the experience of complainers in sexual offence cases and reflect the commitment in the Programme for Government 2021-22 to bring forward legislation in this session of Parliament to protect the anonymity of all complainers of sexual crimes under Scots law.

Current legal framework in Scotland – is there a gap in the law?

Scotland's courts have a long tradition of hearing cases in public which is sometimes referred to as the principle of 'open justice' or 'justice being seen to be done.' The right to a public hearing also forms part of the right to a fair trial under article 6 of the European Convention on Human Rights. The Scottish Government recognises that the transparency of our courts is a fundamental element of enabling public confidence in court proceedings and the administration of justice.

There are also occasions, however, when it is appropriate that certain information relating to court proceedings is not published. This chapter explores the issue of complainer anonymity in sexual offence cases.

At present Scotland differs from the remainder of the United Kingdom in that there is no automatic legal right to anonymity for complainers in sexual offence cases in Scots law.

In practice, complainers in cases of rape and other sexual offences usually give evidence under 'closed court' conditions, which means that the public is excluded from the court during the giving of their evidence (see sections 92(3) and 271HB of the Criminal Procedure (Scotland) Act 1995). This exclusion does not apply to members of the press whose presence is permitted in accordance with the principle of open justice.

While a court can prohibit the publication of details of complainers in sexual offence cases, this does not happen automatically: it requires a court in any given case to make such an order.

The existing legal tools available to Scottish courts in this regard are found in the Contempt of Court Act 1981 ('the 1981 Act'). Under section 11 of the 1981 Act, where a court allows a name or other matter to be withheld from the public during the proceedings, for example further identifying information such as a person's address, photograph or place of work, "the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld".

A person who breaches such an order can be prosecuted for contempt of court and, if found guilty, could be sentenced to imprisonment for up to two years, made subject to a fine, or both.

It is important to recognise the making of a section 11 order is not done automatically by a court, and in most cases reliance is instead placed on a long-standing, non-statutory convention against naming complainers in sexual cases by the media, as discussed further below.

Indeed, research set out by Dr Andrew Tickell in his 2020 paper for Glasgow Caledonian University 'Why don't sexual offence complainers have a right to anonymity in Scotland?', found that in 2018/19, while 1,762 people were proceeded against in Scotland's criminal courts for sexual offences, including 324 people charged with rape, only 8 orders were made under section 11 of the 1981 Act in criminal cases.

This indicates that, while the courts have a power to protect the anonymity of complainers in individual cases, in practice, such power is not often used. Instead, reliance is placed on a long-standing, non-statutory convention, as operated by major media outlets, which provides that complainers in sexual offence cases will not be named without their consent.

This chapter will go on to illustrate why the current position – relying to a significant extent on voluntary self-regulation by the media - does not provide adequate protection for complainers in sexual offence cases and that in the absence of an automatic legislative right to anonymity, there is a gap in the existing legal framework in Scotland.

Existing non-statutory protections for complainer anonymity

As touched on above, the media have a longstanding practice of keeping the names of complainers confidential in news reports. There is a recognised convention that the identity of complainers is withheld from publication by the media (see Sweeney v X | [1982] ScotHC HCJAC).

The Independent Press Standards Organisation ('IPSO') published an Editors' Code of Practice ('the Code') which places restrictions on the reporting of sexual offences to protect the identity of victims. The Code is enshrined in the contractual agreement between IPSO and newspaper, magazine and electronic news publishers.

The Code is self-described as, "the cornerstone of the system of voluntary self-regulation", which "balances both the rights of the individual and the public's right to know."

A number of clauses in the Code are relevant to the issue of reporting sexual offences. The most relevant are Clause 7, which prohibits the identification of children under 16 who are victims or witnesses in cases involving sex offences; and Clause 11, which concerns victims of sexual assault. Clause 11 provides:

"The press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so. Journalists are entitled to make enquiries but must take care and exercise discretion to avoid the unjustified disclosure of the identity of a victim of sexual assault."

Other clauses to consider include Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 6 (Children).

It is the responsibility of editors and publishers to apply the Code to editorial material in both printed and online versions of their publications. Therefore, this method of voluntary self-regulation can be said to rely to a significant extent on what could be termed the more traditional forms of media and publishing structures, where there is a governing editor and/or publisher with oversight and control over what is ultimately published, and who will have regard to the Code.

The Code relies on the continued discretion and voluntary self-regulation of a governing editor or publisher as, in the absence of a section 11 order made by the court, there is no legal prohibition in Scotland to publish identifying information of a complainer in a sexual offence case. Therefore, in terms of the Code, it falls to consider whether there is 'adequate justification' for such disclosure.

The increased use of social media platforms on the internet in the last twenty years, whereby any member of the public can become a de facto publisher with potential global reach, calls into question whether it remains sustainable to rely on media self-regulation to prevent the identity of complainers in sexual offence cases from being made public without their consent. If the court has not made an order under section 11 of the 1981 Act, any person, including, for example, the accused or their friends or acquaintances, can lawfully post information publically about the identity of a complainer in a sexual offence case.

While there have been a small number of cases where complainers have been identified in the press without their consent, it is not thought to be a widespread issue and there is little evidence to suggest that this has occurred in Scotland any more than is the case in England and Wales, where it is a criminal offence to do so. However, the existence of statutory automatic protection in England and Wales and in many countries throughout the world is likely providing additional reassurance to those involved as complainers in sexual offence cases in that jurisdiction and may serve to address the inherent risk that 'new media' poses to vulnerable complainers.

The possible repercussions of the rise of social media within our culture when it comes to sensitive cases involving sexual offending has been explicitly recognised by Lady Dorrian's Review which provides:

"This is an issue of particular pertinence given the proliferation of social media, its use in the reporting of criminal trials, and the phenomena of "new" journalism and blogging."

Progression of technology and the internet has had undoubted benefits for the empowerment of the individual to express themselves and share views and information. However, the relative ease and speed by which information can now be published online to the public has exponentially increased the risk of causing lasting damage to a victim of sexual violence by either naming them or posting information publically which may lead to their identification, whilst at the same time safeguarding the publisher's own anonymity.

While the non-statutory approach of the media has worked well over many years, it can be said the emergence of 'new media' does not fit neatly within the current legal and non-legal framework and presents real challenges in ensuring anonymity is preserved.

Therefore, an underlying question which this consultation must explore is whether the current position in Scotland, relying on convention and the voluntary self-regulation of the press, bolstered where necessary by orders of the court, provides adequate protection.

The Review's ultimate conclusion on this question was that it did not:

"Given the cumbersome nature of the steps which must be taken to secure anonymity, and the risk of inadvertent disclosure which exists in a system which relies on convention rather than regulation, the conclusion must be that it does not. There may generally be little risk of publication of inappropriate matter in the main stream press, although it has occurred from time to time, but there is now a proliferation of sources of reporting and blogging which are not part of that main stream, and are not regulated by IPSO. The rise of "new" or "citizen" journalists, and the vast increase in the use of social media, suggest that the tools hitherto relied upon in Scotland are no longer adequate and that legislation is required to ensure the adequate protection of the identities of complainers making allegations of rape and sexual assault. The introduction of legislation providing anonymity to such individuals is accordingly recommended."

The Scottish Government welcomes the Review's recommendation in this area and committed in its Programme for Government 2021-22 to introduce legislation to protect the anonymity of all complainers of sexual crimes.

Rationale for complainer anonymity

The Helibron report (1975) has been cited as leading to the first legislation in the area of complainer anonymity in England and Wales. As to the underlying rationale for complainer anonymity in sexual cases, the report recognised the detrimental impact of the publicity of sexual offences in particular, both directly upon the complainer and more generally upon its impact on the willingness of victims to come forward and report sexual crimes. The report observed:

"153. …public knowledge of the indignity which [a complainer] has suffered in being raped may be extremely distressing and even positively harmful, and the risk of such public knowledge can operate as a severe deterrent to bring proceedings.…….

154. We are fully satisfied that if some procedure for keeping the name of the complainant out of the newspapers could be devised, we could rely on more rape cases being reported to the police, as [complainers] would be less unwilling to come forward if they knew that there was hardly any risk that the judge would allow their name to be disclosed."

Preserving the anonymity of complainers in sexual offences cases can therefore be said to serve an important protective function, helping to minimise the re-traumatisation of victims of such offending behaviour through the court process, and in turn increase the confidence of victims to come forward and report such crimes in the first instance.

Lady Dorrian's Review identified a similar rationale for complainer anonymity when considering the underlying reasoning behind the practice in Scottish courts of allowing complainers in sexual cases to give evidence in closed court conditions. As recognised by the Review:

"The purpose behind allowing witnesses to give evidence in closed court conditions is to enable the witness to speak freely, to limit the embarrassment and awkwardness which may be felt, and to encourage complainers in other cases to feel able to come forward without concern that they may have to give evidence in a crowded court and before members of the public."

It can be said the same considerations apply to the question of providing for an automatic statutory right to complainer anonymity, in sexual offence cases, in Scots law.

There appears to be broad consensus amongst legal practitioners, academics and stakeholders that legislating for complainer anonymity in sexual offence cases is a positive step with positive impacts on the confidence of victims to enter the criminal justice process, knowing that the matter will be handed sensitively. The Scottish Government recognises the bravery of complainers of sexual offences who come forward and report sexual crime and enshrining a right of anonymity into Scots law may serve to limit the fear of unwanted publicity and the associated worry and anxiety that this may cause, providing welcome legal certainty to complainers that identifying information will not be disclosed. No person should ever feel deterred from reporting a sexual offence to the police through fear, shame or embarrassment at the possibility of the matter then becoming public knowledge as a result, whether that be amongst friends, colleagues, the local community, strangers, or even family members, when it has not been the complainer's choice to confide in others or 'tell their story' more publically. Depending on how such a right is legislated for, a statutory right to anonymity may serve the dual purpose of increasing the protection and confidence of complainers in sexual offence cases while at the same time recognising and preserving their autonomy and 'right to be heard', should survivors wish to speak publically about their lived experiences.

It is clear that at present Scotland differs from the remainder of the United Kingdom, and many countries around the world, in that there is no automatic legal right to anonymity for complainers in sexual offence cases in Scots law. Instead, the position in Scotland relies on voluntary self-regulation by the media and orders of the court. This position can be said to be unsatisfactory for complainers in sexual offence cases, particularly in light of the increased use of social media, which enables anybody to become a 'publisher' who can make information available to anyone with access to the internet. This lack of legal protection of complainer anonymity may in turn erode confidence in reporting sexual offences.

The pertinent question surrounding complainer anonymity therefore appears to be not should such a legislative right be enshrined into Scots law, but how such a legislative right should be enshrined into Scots law. This part of the consultation goes onto explore how existing protections for complainer anonymity have been implemented throughout the United Kingdom and internationally and the underlying rationale in support of such protections.

Approach in other jurisdictions

The regulation of the media to provide anonymity for complainers in sexual offence cases is practised in many countries, either through legislation (for example, England, Wales and Northern Ireland; Australia, Canada, India and New Zealand) or through policy (for example, most of the United States).

It is clear that, with the exception of the USA, Scotland is unusual in that complainers in sexual offence cases currently have no automatic legal right to anonymity.

In order to help assess how policy could be developed for Scotland, it is helpful to consider how other countries operate policy in this area. A more detailed exploration of the different approaches both across the United Kingdom and internationally is set out at Annex B.

Broadly speaking, it is understood a large majority of those countries which provide complainers in sexual offence cases with a right to anonymity, provide that this right is automatic –there is no requirement for the complainer (or the prosecutor) to apply to the court for an order to be put in place. This avoids any requirement for the complainer to initiate any court action to obtain such an order. One advantage of this is that a complainer cannot lose their right to anonymity either because of an oversight or, if they were required to initiate a court process themselves, because they lacked the resources to do so. Providing for an automatic statutory right to anonymity would bring Scotland into line with the remainder of the United Kingdom and international practice in this area.

If sexual offence complainers had an automatic right to anonymity in Scots law, they might still wish to waive this. To do so, such a complainer (or, strictly speaking, any publisher wishing to assist them in doing so) may have to go through some form of legal process. On balance it appears that it would be appropriate for the 'default' starting position to be that the complainer has an automatic right to anonymity which they can waive, rather than their being required to make some form of application in order to obtain that right in the first place.

Accordingly, the Scottish Government proposes that reform of the law in this area should centre on the provision of a statutory right of anonymity which is automatic and this chapter goes onto explore how such a right may be legislated for.

When an automatic right of anonymity should take effect

If there is to be an automatic right to anonymity for complainers in sexual offence cases, a key question is the point at which this automatic right should take effect. Different jurisdictions have taken different approaches to this. In England, Wales and Northern Ireland, it takes effect from the point at which an "allegation" of a qualifying sexual offence is made.

As set out in 'How should complainer anonymity for sexual offences be introduced in Scotland? Learning the international lessons of #LETHERSPEAK' by Dr Andrew Tickell – a forthcoming piece in the Edinburgh Law Review - a similar approach is adopted in Victoria, India, Hong Kong and New Zealand, which requires the allegation to be made to a police constable. Dr Tickell also notes that in other jurisdictions, restrictions on identifying a complainer take effect when an accused person is formally charged (for example, Singapore and the Republic of Ireland) or when the case first calls in court (for example, Australia's Northern Territory) and that some jurisdictions rely on court orders to prohibit identifying information.

A system where the complainer must apply for their own court order may place an unnecessary burden - administrative and/or financially - on them, and potentially discourage applications from being made.

If the right to anonymity only takes effect at the point at which an accused person is formally charged by police or when their case first calls in court, there is a risk, perhaps especially in a high profile case, that the anonymity of the complainer could be compromised before this point. However, there may be a case for requiring something more formal than an 'allegation being made' for a complainer to gain the right to anonymity. The New Zealand/India/Hong Kong approach of requiring the allegation to be made to a police officer would have the advantage of tying the right to anonymity clearly to the earliest stage of the criminal justice process and providing the complainer with certainty of this right, without having to go through the burden and cost of a court process, proving protection at the earliest stage. Though it would mean that the protection would not be available to someone claiming to be a victim of a sexual offence if neither they nor any other person reports the matter to the police.

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?

a) when an allegation of a sexual offence is made

b) when a person reports an alleged sexual offence to a police constable

c) when an accused person is formally charged by the police with a sexual offence

d) when criminal proceedings for a sexual offence first call in court

e) other – please provide details

Please give reasons for your answer.

Offences to be covered by an automatic right of anonymity

It is helpful to consider the approaches in other jurisdictions as to the scope of offences which should be covered by a statutory right to anonymity. In the overwhelming majority of the jurisdictions we have considered that provide for an automatic right to anonymity, that right is restricted to what may be termed 'sexual offences'.

Lady Dorrian's Review recommended, "legislation should be introduced granting anonymity to those complaining of rape or other sexual offences along the lines of the Sexual Offences (Amendment) Act 1992."

The Sexual Offences (Amendment) Act 1992 ('the 1992 Act') is the legislation that provides lifetime anonymity for complainants of sexual offences in England, Wales and Northern Ireland. In light of the recommendation in Lady Dorrian's Review, it is considered the sensible starting point for the prescribed offences over which a right to anonymity should apply in Scots law is the sexual offences as set out in section 288C of the Criminal Procedure (Scotland) Act 1995. The list of offences at section 288C captures what may generally be categorised as sexual offences in Scots law. It includes the offences contained in the Sexual Offences (Scotland) Act 2009, which created a new statutory framework for certain sexual offences in Scots law, clarifying and modernising the previous mix of common law and statutory provision in this area.

There has, however, been some criticism that the 1992 Act contains some omissions in the offences which are covered by the right to anonymity. For example, it is understood that the right does not extend to the disclosure of intimate images. Section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 ('the 2016 Act') contains the offence of disclosing, or threatening to disclose, an intimate photograph or film. Under section 2 of the 2016 Act, it is an offence to disclose a photograph or film showing a person in an intimate situation and it is an offence to threaten to disclose a photograph or film showing a person in an intimate situation. The nature of the offending behaviour and, in particular, the impact that unwanted publicity may have on the complainer is such that there may be benefit in including this in any statutory provision for complainer anonymity.

Finally, further offences which may be of relevance in legislating for an automatic right of anonymity are those in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 ('the 2005 Act'). Section 1 of the 2005 Act provides for an offence of meeting a child following certain preliminary contact. The offence is intended to cover situations where an offender establishes contact with a child through, for example, meetings, telephone conversations or communications on the internet, and gains the child's trust and confidence so that the offender can arrange to meet the child for the purpose of engaging in unlawful sexual activity involving, or in the presence of, him or her. Other offences of relevance in the 2005 Act include paying for sexual services of a child (Section 9); causing or inciting and arranging or facilitating provision by a child of sexual services or child pornography (section 10 section 12); and controlling a child providing sexual services or involved in pornography (section 11).

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

a) offences contained at section 288C of the Criminal Procedure (Scotland) Act 1995

b) intimate images offence contained at section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016

c) offences contained in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

d) other – please provide details

Please give reasons for your answer.

End point of a right to complainer anonymity

There are differing approaches internationally as to the point at which a complainer's right to anonymity ceases to have effect. In some jurisdictions, most notably India, the right to anonymity not only extends throughout the complainer's lifetime, but also following death. This approach has been criticised, as it prohibits next of kin or family members from sharing their loved one's story and has resulted in family members seeking refuge in the international press in order to share the victim's story.

Other jurisdictions, including England, Wales and Northern Ireland, adopt the approach that anonymity expires on the death of the complainer. This has the advantage of simplicity and certainty for the complainer during their life time while also representing a natural end point which is consistent with approaches in other areas of law when it comes to privacy and personal data protection.

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

a) upon the death of the complainer

b) no automatic end point

c) other - please provide details

Please give reasons for your answer.

Circumstances in which anonymity may be set aside

Sometimes victims of sexual offences choose to waive their anonymity in order to tell their story to the media and speak about their lived experiences. If anonymity is to be placed on a statutory basis, with publication of the details of a complainer in a sexual offence case a criminal offence, consideration requires to be given as to how victims can continue to exercise that right. There are a minority of jurisdictions where it is an offence for anybody, including the victim themselves, to publish information that could identify the victim of a sexual offence, but where such laws are in place, they have been criticised as amounting to 'gag laws'.

If it is accepted that complainers should have the right to set aside their anonymity, the key question to be determined is what role, if any, the court should play in setting aside the anonymity of complainers in sexual offence cases. There is a balance to be struck between, on the one hand, avoiding placing unnecessary administrative and cost burden on a victim of a sexual offence who wishes to tell their story and, on the other hand, ensuring that they have genuinely consented to waive their anonymity.

Different jurisdictions which allow a complainer to waive their anonymity have taken different approaches to this. Dr Tickell notes in his forthcoming piece on complainer anonymity that, in New Zealand, the complainer is required to make an application to the court to waive their anonymity and the court is required to grant the order if it, "is satisfied that the complainant understands the nature and effect of his or her decision to apply to the court for the order".

However, many jurisdictions permit complainers to waive their anonymity without first obtaining the permission of a court. This has the benefit of making the waiving of anonymity for those complainers who wish to do so easy and costless. In England, Wales and Northern Ireland this is achieved by providing that it is a defence to the offence of disclosing the identity of the complainer where the complainer consented to this disclosure. This ensures both that the complainer themselves can directly disclose their identity and that they can, if they prefer, do so by telling their story to a media outlet. In theory, there could be circumstances where it may be unclear whether a complainer has, in fact, consented to waive their right to anonymity (for example, where a third party discloses their identity after their identity has been disclosed by another publication and it is wrongly assumed that the complainer had consented to that first disclosure). However, in practice, this does not appear to have created significant difficulties in the various jurisdictions that have adopted this approach.

There will also be cases involving multiple complainers where, depending on the facts and circumstances of the particular case, the fact that one complainer elects to waive their anonymity could enable the identification of other complainers who have not chosen to do so. However, it may be possible to address this without making explicit provision in this area. If it is an offence to identify a complainer in a sexual offence case without their consent, anyone wishing to waive their anonymity in a case involving multiple complainers would be required to do so in a manner which did not identify other complainers without their consent, and any media organisation / third party publishing information about such a case would require to ensure that information that they publish about a case did not reveal the identity of anyone who had not given their consent.

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

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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?

a) unilaterally by consent of the complainer

b) following an application to the court by the complainer

c) other – please provide details

Please give reasons for your answer.

Waiving anonymity in respect of children

If an approach is adopted whereby the consent of adult complainers is required before their details can be published without the need for judicial involvement, there may nonetheless be a case for adopting a different approach where the complainer is a child.

A child may lack the maturity to fully understand what they are consenting to and as such, it might reasonably be argued that additional protections are required before identifying information can be published in relation to a child complainer in a sexual offence case irrespective as to whether they have consented to do so or not. Court oversight may be helpful in this regard, by providing for the right of a child complainer to apply to the court for permission to waive their anonymity in connection with a case.

A secondary question would be the age threshold at which a person is deemed a child for these purposes and may not unilaterally by consent authorise the publishing of identifying information. As Dr Tickell sets out in his forthcoming piece on complainer anonymity, most jurisdictions establish the threshold of 18 years of age to make or authorise secondary publishers to disclose identifying information, including India, Tasmania, New Zealand, the Australian Northern Territory, Queensland, and South Australia.

A different approach is adopted in England, Wales and Northern Ireland, where section 5(3) of Sexual Offences (Amendment) Act 1992 states that complainants must be sixteen years of age to authorise publication. A younger still approach is adopted in New South Wales, which sets a threshold of fourteen years of age^, as set out in section 578A(4)(c) of the Crimes Act 1900 No 40.

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

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer, including (if you agree) what you think this age should be.

Powers of the court to set aside anonymity

Many jurisdictions do not provide the court with a power to override complainer anonymity in the course of criminal proceedings. In this regard, the approach in England, Wales and Northern Ireland under the 1992 Act can be described as unusual. This provides under section 3 that the court has the power in certain circumstances, to direct that the complainer's right to anonymity under section 1 shall not apply.

On one view, the ability of the court to override a complainer's anonymity, irrespective of the complainer's wishes, erodes the certainty that the relevant provisions in law are seeking to provide to victims of sexual offences.

However, there could be very exceptional circumstances where the court considers it is nonetheless in the interests of justice to override a complainer's right to anonymity. Examples of the circumstances in which the courts in England, Wales and Northern Ireland can override anonymity are set out at Annex B.

One possible alternative to leaving this entirely to judicial discretion could be that an automatic right of anonymity would expire or could be overturned by a court, if the complainer were charged or convicted of any subsequent crime against public justice in connection with the criminal allegation(s) and associated proceedings in question, for example, perjury, perverting the course of justice or wasting police time.

This would have the advantage of providing complainers with certainty about the operation of a statutory right to anonymity while acting a safeguard where an offence against public justice is committed.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer, including (if you agree) your view on the circumstances in which this power should be available.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Penalties

Criminal cases in Scotland are dealt with in different courts depending on how serious they are. They can either be 'summary' (decided by a judge sitting without a jury) or 'solemn' (more serious cases decided by a jury). It is usually up to the procurator fiscal (the prosecutor) to decide what court a case will be heard in although sometimes sets out what this should be, for example, trials for rape must be heard in the High Court. Some less serious offences must be prosecuted at summary level. Others can be prosecuted both ways. Maximum penalties are set by law for each court a case can be heard in.

The Scottish Sentencing Council website provides further information about the maximum sentencing powers of each court, which is set out in the following table:

	Justice of the Peace Court	Sheriff Court (summary)	Sheriff Court (solemn)	High Court
Who decides the verdict?	Justice of the peace	Sheriff	Jury	Jury
Who sets the sentence?	Justice of the peace	Sheriff	Sheriff	Judge
Maximum fine	Up to £2,500	Up to £10,000	Unlimited	Unlimited
Maximum length of imprisonment	Up to 60 days	Up to 1 year	Up to 5 years	Up to life

Statutory offences usually specify the maximum fine available to the court on conviction. Often, this is with reference to the 'standard scale', which is a scale setting out five levels of fine up to a maximum of £5,000.

The standard scale applies to statutory offences which may only be prosecuted at summary level. For solemn level statutory offences, the maximum financial penalty is an unlimited fine.

Where a statutory offence can be prosecuted at both solemn or summary level, and the accused is convicted of it at summary level, the maximum fine tends to be the 'prescribed sum' (currently £10,000).

Turning to the current penalties for contempt of court, where a person is convicted for breaching a section 11 order in Scotland under the Contempt of Court Act 1981 and that order relates to a solemn sexual offence case, the maximum sentence that can be imposed is two years' imprisonment and/or an unlimited fine. Where a person is convicted for breaching a section 11 order and that order relates to a summary sexual offence case, the maximum sentence that can be imposed is three months' imprisonment and/or a fine not exceeding level 4 on the standard scale (£2,500).

It is not clear why publishing the details of a complainer in a summary case should necessarily attract a lower penalty than publishing the details of a complainer in a solemn case, though the sentencing judge will take into account the particular facts and circumstances when determining the appropriate sentence in any given case.

In England, Wales and Northern Ireland the maximum penalty on conviction for the offence of publishing without consent the details of a complainer in a sexual offence case under section 5 of the 1992 Act is an unlimited fine. England, Wales and Northern Ireland is unusual amongst the jurisdictions that provide for a statutory right to anonymity in that imprisonment is not a possible penalty.

It may be argued that this is a more appropriate comparison than the offence in the 1981 Act, which covers a wide range of different circumstances in which a person may be found guilty of contempt of court. There may, however, be a case for providing for maximum penalties more appropriate to offences committed by corporate bodies due to the financial resources available to large media outlets. For example, up to two years' imprisonment and/or an unlimited fine.

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?

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

b) an unlimited fine

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

d) other - please provide details

Please give reasons for your answer.

Defence(s) to breaching anonymity

In England, Wales and Northern Ireland the ability of a complainer to waive their anonymity is framed as an offence. This gives complainers the ability to self-publish or publish their stories in mainstream media without requiring to make an application to the courts. This approach has the advantage of empowering survivors to share their story if they wish without the need to go through a cumbersome and costly court process.

For third party publishers, this means if an individual or member of the media publishes identifying information about a complainer in a sexual offence case, unless it can be established the publishing was carried out with the informed written consent of the complainer (per the criteria set out in the defence), an offence of breaching anonymity will have occurred and the defence will not be open to them.

To ensure that the ability to waive anonymity by the complainer is not abused, the 1992 Act restricts the operation of the defence so it does not apply where written consent was not freely given, i.e. if "any person interfered unreasonably with the peace or comfort of the person giving the consent to secure it".

Sections 5(5) and 5(5A) of the 1992 Act also provide for more general defences where a person is charged with an offence of breaching anonymity where it can be proven they were not aware, nor did they suspect or have reason to suspect, that the publication included the matter in question; and separately where it can be proven that at the time of the alleged offence they were not aware, and neither suspected nor had reason to suspect, that the allegation in question had been made. The latter defence may reflect that the starting point for complainer anonymity under the 1992 Act, is 'as soon as an allegation is made', where there could be uncertainty as to if/when precisely this is deemed to have occurred, as opposed to a more definitive starting point such as report to a police constable.

In light of the social media age we are now living in and the ease by which information can be shared online, there may be situations where identifying information is published without the consent of the complainer and in contravention of the complainer's right to anonymity, and the material in question is then shared/retweeted etc. by third parties who were not aware and had no basis to suspect that the original material was published in breach of the law. To guard against unfairly criminalising an individual or publisher for the sharing of information in these circumstances, there may be benefit in providing for a general defence of 'reasonable belief,' i.e. that it is a defence to a charge of breaching anonymity that the person reasonably believed the complainer had consented to publication.

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

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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? Please select all that apply.

a) adopt the model of the 1992 Act in England, Wales and Northern Ireland

b) a 'reasonable belief' defence

c) other – please provide details

Please give reasons for your answer.

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?