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Rolf Harris and victims who waive their  anonymity –are the press in constant contempt?

 

Image from the Daily Mail

In the Rolf Harris trial one victim was said to have waived her anonymity. There is no law that allows her to do this although a publisher would have a defence to an allegation of contempt if she had provided written consent. The law requires an application to be made to the court.

Witness anonymity orders

Under CAJA 2009, section 86, a court may make a witness anonymity order in relation to a witness in criminal proceedings. An anonymity order is to be regarded as a special measure of ‘last practicable resort’. This relates to witnesses whose identity is protected.  The outcome of such a draconian order is perhaps best demonstrated by R v Donovan and Kafunda [2012] EWCA Crim 2749 where convictions which depended on the evidence of anonymous witnesses, were quashed where there was evidence available which provided grounds for believing that those witnesses might have had a motive for lying, there were problems with disclosure and the judge had not referred to the evidence of motive to lie.

Victims of sexual offending

Where witness identity is known, “victims” of certain specified sexual offences are given lifetime anonymity under the Sexual Offences (Amendment) Act 1992. It applies to complainants from the moment an allegation has been made for the lifetime of the complainant in relation to “any publication” and therefore includes traditional media, online media and individual users of social media websites,

No publication is permitted to identify victims of certain sexual offences during their lifetime. ‘Publication’ includes social media such as Twitter and Facebook. This includes name, address, place of work, school or pictures. The relevant offences are:

  • rape;
  • burglary with intent to rape;
  • sexual offences pursuant to SOA 1956, sections 2–7, 9–12 and 14–17;
  • intercourse with a mentally handicapped person pursuant to MHA 1959, section 128;
  • indecency with a child pursuant to IWCA 1960, section 1;
  • incitement to incest contrary to CLA 1977, section 54;
  • sexual offences pursuant to SOA 2003, Part 1 (except sections 64, 65, 69
    and 71);
  • any attempt, conspiracy, incitement, aiding, abetting, counselling or procuring of the above offences.

Such a restriction will not be displaced by an acquittal but can be displaced in the following ways:

  • The complainant may waive the entitlement to anonymity by giving written consent to being identified (if they are 16 or older)
  • Where the complainant is prosecuted for perjury in separate proceedings.
  • The court lifts the restriction where the defendant or a co-defendant applies for a direction that the restriction be removed, the judge concludes that the effect would be to impose a substantial and unreasonable restriction upon the reporting of the proceedings, that it is in the interests of justice to remove or relax the restriction or where there is an appeal and a direction to remove the restriction is necessary to obtain evidence in support of the appeal, and the appellant will otherwise suffer injustice

These provisions apply to all complainants whether on an indictment or otherwise. It follows that the ban on  reporting must apply to witnesses giving evidence of propensity. In the Rolf Harris trial, this was applied by Sweeney J to witnesses who gave evidence from abroad.

Excluding some small pockets of contrary opinion, it is generally accepted that automatic complainant anonymity is a good thing; it protects those who have been, or allege to have been, the victim of sexual offences, and prevents media, and public (yes, it extends to Twitter and Facebook) from ‘outing’ the victim or complainant. The ‘worth’ – if it needed to be proven – of the protection is amply demonstrated by the series of historic sexual offences cases prosecuting celebrities. Those celebrities typically are supported by ‘fans’ who accuse the complainant of lying and – notably in the case of the Ched Evans rape victim – name and abuse the accusers on social media. The need for the protection therefore, is unarguable in my view.

The fourth complainant in the Rolf Harris case had previously ‘sold her story to the Australian media’. The Mirror reported that the complainant had ‘waived the right to anonymity usually given to alleged sex offence victims’ and the police released a picture of her to the press. Consequently, her name and picture were printed in the press.

I contacted the judicial press office to ask for more information about the issue. I was told that Mr Justice Sweeney made an order prohibiting the naming of any witnesses (an ‘initials only’ order as I understand it) but that the fourth complainant was not part of that order. I was also told that ‘It was always known that she had waived anonymity and she re-confirmed that at the start of her evidence.’

There should have been an application to the court to discharge the order.

Discharging the anonymity

The court can ‘discharge’ the anonymity afforded to complainants under section 1.

s.3(1) [If the defendant] or another person against whom the complainant may be expected to give evidence at the trial, applies to the judge for a direction under this subsection and satisfies the judge—

(a) that the direction is required for the purpose of inducing persons who are likely to be needed as witnesses at the trial to come forward; and

(b) that the conduct of the applicant’s defence at the trial is likely to be substantially prejudiced if the direction is not given,

the judge shall direct that section 1 shall not, by virtue of the accusation alleging the offence in question, apply in relation to the complainant.

(2) If at a trial the judge is satisfied—

  1. that the effect of section 1 is to impose a substantial and unreasonable restriction upon the reporting of proceedings at the trial, and

(b) that it is in the public interest to remove or relax the restriction,

he shall direct that that section shall not apply to such matter as is specified in the direction.

Judicial pragmatism

Mr Justice Sweeney appears to have taken a pragmatic approach – her name had been published, the picture had been released by the police, and she had confirmed orally that she wished to ‘waive’ her anonymity – the fact that there was no provision specifically allowing for this circumstance is almost irrelevant. No-one sought to engage the press on this issue but the danger in flouting the rules is that victims will be put under pressure to waive their anonymity and this will be used to suggest that the victim is lying for the sake of publicity. To avoid such inflammatory speculation, it is incumbent on media lawyers to advise their clients correctly and / or to seek assistance from criminal practitioners who specialize in this area.

Undoubtedly, the trial judge, took a sensible courseas it could of course be argued that such a situation could be covered by the ‘public interest’ requirement in section 3(2),

Full details on the law on publicity and anonymity in cases involving sexual offending are set out in the second edition of the Sexual Offences Handbook – pre order your copy here.

Reporting restrictions in criminal courts is the subject of a document released by the Judicial College in June 2014. Interestingly, whilst it does deal with reporting restrictions, it does not deal with witnesses who give evidence anonymously. It can be read here.

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