Victims of rape and other serious sexual crimes are entitled to lifelong anonymity under the Sexual Offences (Amendment) Act 1992. It is sometimes suggested that defendants in sex cases should enjoy similar protection until they are convicted at trial. However in a novel twist, a judge recently went one step further and ordered the anonymisation of a convicted rapist in order to protect the identity of his victim.

In R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434 the Court of Appeal overturned that order and held that the courts do not have power to protect victims of sexual crime by anonymising defendants who have been named in open court. The judgment highlights the thorny issues that arise whenever anonymity is sought in criminal cases. It also contains an interesting discussion about the role of judicial guidance and journalistic responsibility in relation to media reporting on court proceedings.

The facts

In February 2012 the defendant stood trial at Cambridge Crown Court on five counts of rape and four counts of breaching a restraining order. The trial took place in open court and the case was listed under the defendant’s full name. The defendant was convicted on all counts and sentenced to a term of imprisonment for public protection. At the conclusion of the sentencing hearing, the judge imposed an order prohibiting publication of

“anything relating to the name of the defendant which could lead to the identification of the complainant which could have serious consequences for the course of justice”.

The judge initially made the order under s. 4(2) of the Contempt of Court Act 1981, however following representations from the press he accepted that he had no power to make any order under that section. Instead, citing concerns about the consequences for the victim if the naming of the defendant led to her identification, he continued the order under s. 1(2) of the Sexual Offences (Amendment) Act 1992.

Judgment of the Court of Appeal

The Press Association appealed against the anonymity order. On 21 November 2012 the Court of Appeal (Lord Judge CJ, Gross LJ and Mitting J) allowed the appeal, which was not opposed by the Crown or the Friend of the Court.

The Court of Appeal began by explaining why (as the judge below ultimately recognised) there was no power under the Contempt of Court Act to impose a permanent ban on publishing the defendant’s identity.

Section 4(2) empowers a court to postpone contemporaneous reporting of particular matters where there is “a substantial risk of prejudice” to the current proceedings or other linked or related proceedings. An order under s. 4(2) should only be made where it is necessary to do so and as a last resort. In the present case, however, the defendant had been tried, convicted and sentenced in public without any restriction on the publication of his identity, and there were no pending proceedings that might be prejudiced by the publication of his name. Furthermore, a section 4(2) order is only concerned with postponement of publication. However the judge’s order – which prohibited publication for an indefinite period – was tantamount to a permanent ban. For all these reasons, s. 4(2) was inapt to make the order.

There was similarly no jurisdiction to make an order under section 11, which empowers the court to prohibit publication of a name or other matter in circumstances where that name or matter has been withheld from the public during the proceedings. Since the defendant’s name was never withheld at any point during the proceedings, s. 11 could not apply.

The Court of Appeal then turned to consider the 1992 Act. Section 1(1) of the Act states that where a person alleges they are the victim of a serious sexual offence “no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed”. Section 1(2) similarly provides that where a person has been accused of a serious sexual offence, no publication may be published during the complainant’s lifetime which includes any “matter likely to lead members of the public to identify” the complainant.

It is a criminal offence to contravene s. 1 of the Act. The offence applies to everyone – not just the press – and may be committed by expressly naming a complainant or by enabling a ‘jigsaw’ identification to take place. However the Act contains no express power to restrict publication of a convicted defendant’s name. The Court of Appeal identified several obstacles to reading in such a power:

  • First, the absence of an express power is telling. The only express power to make an order affecting a complainant’s right to anonymity is found in s. 3, which permits the judge to lift the complainant’s anonymity in carefully defined situations where the interests of justice so require.
  • Second, there is no need for a specific power to order a defendant’s anonymity since the complainant already enjoys the protection conferred by s. 1. A breach of the complainant’s right to anonymity constitutes a criminal offence.
  • Third, the absence of a judicial power to restrict publication provides “a clear demarcation of responsibility”. Decisions about what should or should not be published are left to editors and reporters, not the court. If s. 1 is breached then the persons responsible for publication face criminal prosecution.

In relation to the last point, the Court of Appeal explained that it was clear from the legislative framework that responsibility for decisions relating to publication is aligned with the risk of prosecution for contravening s. 1. Those responsible for publication must ensure that the provisions which prohibit the public identification of a complainant in a sexual case are obeyed. They must do so “not because they are enjoined to do so by judicial order, but because that is a statutory requirement” [16].

The Court of Appeal endorsed the approach set out in R v B [2006] EWCA Crim 2692 – a case about s. 4(2) of the Contempt of Court Act 1981 – and held that the same trust in the media should apply when dealing with reporting about sexual crimes. In R v B the court stated:

“The responsibility for avoiding the publication of material which may prejudice the outcome of a trial rests fairly and squarely on those responsible for the publication. In our view, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice. They have access to the best legal advice; they have their own personal judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one which any responsible editor would wish to take. In itself that is an important safeguard, and it should not be overlooked simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media”. [25]

The Court of Appeal said there were very good reasons why defendants are not provided with anonymity, particularly after they have been convicted. While they accepted that in “extremely rare” cases a threat to the administration of justice or to the life or physical safety of the defendant or his family could lead to an anonymity order (see the judgment of Lord Rodger in In re Guardian News and Media Limited [2010] 2 AC 697 at [26]) this was clearly not such a case. The Court of Appeal reiterated the earlier observations of the five-judge panel in In re Trinity Mirror plc [2008] EWCA Crim 50:

“32. In our judgment it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime… From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case” [32].

The Court of Appeal concluded by emphasising that:

“It was for the press to decide how appropriately to report the case so as to ensure the anonymity of the complainant: it was not for the court to instruct the press how to do so by making an order which in effect imposed a blanket prohibition against publication of the defendant’s name.” [19]

Comment – The Court of Appeal’s judgment

This is a sensible and principled judgment. The judge’s desire to protect the victim of appalling sexual crimes was entirely understandable; however the Court of Appeal’s reasons for finding that he lacked jurisdiction to anonymise a convicted rapist are compelling.

The structure of the legislation clearly imposes responsibility for compliance – and hence potential criminal liability – on publishers. It is not for judges to micro-manage how journalists comply with their obligations under the Act, or to curtail the scope of legitimate editorial discretion. Transparency in trials is a cornerstone of criminal justice, and a power to anonymise defendants convicted of serious crimes should not be lightly inferred.

The judgment shows commendable trust in the media to act responsibly and abide by the requirements of the Act. At the same time, the Court of Appeal rejected the suggestion that it was wrong for a judge to provide non-binding guidance to the press about what it may be inappropriate to publish. A judge is

“entitled to express concerns as to the possible consequences of publication, and indeed to engage in a discussion with representatives of the press in court about these issues…if he thinks it appropriate to offer comment, we anticipate that a responsible editor would carefully consider it before deciding what should be published.” But the essential point is that “whatever discussions may take place, the judicial observations cannot constitute an order binding on the editor or the reporter”.

 The judgment also draws attention to the limited sanctions available for punishing contraventions of s. 1. At present, the offence is only punishable with a fine. The Court of Appeal call for an “urgent reconsideration” of whether this is sufficient punishment for those who deliberately breach a complainant’s anonymity. They no doubt had in mind the recent conviction of nine individuals who deliberately named and denigrated a rape victim on Twitter. Each defendant was fined just £624, despite the judge finding that they had acted with “deliberate malice” and had “re-victimised this woman again”. When compared to the stiff custodial sentences handed down for offences under s. 127 of the Communications Act 2003 (publication of grossly offensive, indecent, obscene or menacing messages on a public electronic communications network) those financial penalties look decidedly lenient, to say the least.

Comment – Anonymity in criminal proceedings

The rules regulating what may be published in relation to criminal proceedings, and the array of statutory powers to protect the identity of witnesses and parties, are complex and easily misapplied.

This is not the first time a court has recently stumbled in this area. In June a judge at Teesside Crown Court made an order under s. 46 of the Youth Justice and Criminal Evidence Act 1999 requiring that a woman convicted of making a false rape allegation should remain anonymous. The order was designed to protect the identity of her victim. Section 46 gives the court power to make a “reporting direction” preventing publication of matters relating to a witness that are likely to lead to the person being identified as a witness in the proceedings. However the judge was forced to revoke the order after it was pointed out that (a) defendants are specifically excluded from those eligible for anonymity under s. 46; and (b) the person for whom the protection was being sought (the innocent man falsely accused of rape) was not giving evidence as a witness.

These cases highlight some of the legal pitfalls that exist when anonymity is sought in criminal cases. At the same time, they reflect the diligence of journalists who report on court proceedings: in both cases the anonymity order was revoked following a challenge by the press. They therefore call to mind Lord Denning’s famous paean to newspaper reporters in The Road to Justice:

“… a newspaper reporter is in every court. He sits through the dullest cases in the Court of Appeal and the most trivial cases before the magistrates. He says nothing but writes a lot. He notes all that goes on and makes a fair and accurate report of it. He supplies it for use either in the national press or in the local press according to the public interest it commands. He is, I verily believe, the watchdog of justice.”

At a time when press failings are receiving unprecedented public exposure, it is worth recalling the invaluable role that a fearless and responsible media plays in upholding transparency, informing the public and scrutinizing the courts who deliver justice in their name.

Edward Craven is a barrister at Matrix Chambers.