Complainer anonymity: Scots law in need of reform

Women in Criminal Law

Complainer anonymity: Scots law in need of reform

In many jurisdictions around the world, complainants in sexual offence cases have a right to anonymity.

This is the position in England, Wales and Northern Ireland, where identifying a complainant in a sexual offence case is a criminal offence. Complainants in sexual offence cases are similarly protected in the Republic of Ireland, Canada, Australia, New Zealand, India and Bangladesh.

In Scotland, however, complainers have no automatic right to anonymity. Statutory provisions which apply in England, Wales and Northern Ireland do not apply to Scottish complainers.

The Sexual Offences (Amendment) Act 1992

The Sexual Offences (Amendment) Act 1992 provides lifetime anonymity for complainants in sexual offence cases. Section 1 of the Act states that, where an allegation has been made that an offence to which the Act applies has been committed against a person, no matter relating to that person shall be included in any publication during that person’s lifetime, if it is likely to lead members of the public to identify them. Section 2 of the Act then lists the offences to which this Act applies, which includes most sexual offences recognised by the law of England and Wales and the law of Northern Ireland.

It is important to understand that the 1992 Act does not protect Scottish complainers. Scottish publishers are prohibited from identifying complainants in cases elsewhere in the UK. However, no Scottish statutory or common law offences are included in the list of sexual crimes to which a right of complainer anonymity attaches. This means that Scottish complainers do not have the same rights as complainants in England and Wales or Northern Ireland.

Scotland’s legislative gap

In terms of the protections available to Scottish complainers, under section 11 of the Contempt of Court Act 1981, an order can be made which allows the court to withhold a name or other matter in connection with court proceedings. However, these orders are not automatic and are not commonly used in sexual offence cases in Scotland. The media is also bound by the Editors’ Code. The Code provides that complainers should not be identified by the press ‘unless there is adequate justification and they are legally free to do so’. Journalists may therefore be ethically and professionally constrained from publishing information which can lead to the identification of complainers – but ultimately this is simply an ethical code and is not legally enforceable in our courts.

As a result of this legislative gap, the anonymity of complainers in Scottish sexual offence cases is legally precarious.

For example, in 2015, a Scottish newspaper published an article which reported that an accused had been found not guilty of a sexual assault. The complainer was named in the article. He subsequently complained to the Independent Press Standards Organisation (IPSO) alleging a breach of the Editors’ Code. He explained that the article caused him significant upset and that his family and friends found out about the incident by reading the report in the press. The newspaper noted that no order had been made under the Contempt of Court Act in this case and that, while it is usual practice not to name complainers, there is no statutory provision which provides for a right to anonymity in Scotland. While IPSO did find a breach of the Editors’ Code, this case demonstrates the risks associated with this legislative gap. With no section 11 order in place and no statutory right to anonymity, complainers are reliant on the professional regulation of the media.

Additionally, the growth of social media has created complex issues regarding anonymity. It is no longer only trained journalists regulated by professional bodies who have the ability to report to a wide audience. In 2018, a Belfast man was prosecuted for violating the anonymity provisions of the 1992 Act on social media in relation to the ‘rugby rape trial.’ Similarly, nine people were fined in accordance with the 1992 Act for publishing material likely to lead members of the public to identify the complainant in the rape trial of footballer Ched Evans.

While there are criticisms to be made of the 1992 Act in the context of new media, these prosecutions demonstrate that it is possible to rely on the Act to prosecute social media users who identify complainants in England and Wales and Northern Ireland.

In Scotland however, where this statutory protection does not apply, the only way to protect complainer anonymity is, as noted above, through an order under the Contempt of Court Act. In the recent trial of Alex Salmond, such an order was made on the second day of the trial. This meant that two individuals could be prosecuted for violating that order when they subsequently named the complainers on social media. However, it is important to remember that in most sexual offence cases these orders are not made. This results in a significant weakness in complainer protection.

The Campaign for Complainer Anonymity

This legislative gap is why we founded the Campaign for Complainer Anonymity (CCA). The CCA is a collaboration between Glasgow Caledonian University law students and staff. We believe that the current system in place in Scotland is problematic. We are therefore campaigning to change the law.

We launched the campaign in October 2020. Since then, we have built our dedicated campaign website, which plays an important public legal education role on this issue. We have also undertaken comparative research, learning how complainers are protected in other jurisdictions. We are committed to not only changing the law but to learning lessons from other countries, so that Scotland can become an example of best practice.

We are starting to see support for change. In the Scottish Parliamentary election in May, four out of the five main political parties supported some degree of reform for complainer anonymity law in their manifestos. In the recent report from the Lord Justice Clerk’s Review Group on improving the management of sexual offence cases, the introduction of express legislative protection for complainer anonymity was recommended. These are positive signs and we are calling on the Scottish Parliament to build on this momentum and to close this legislative gap as a matter of urgency.

Ultimately, we believe that complainers in Scotland deserve the automatic right to anonymity in sexual offence cases, and we will continue to campaign until this is the case.

If you want to learn more about the Campaign or support our work, please visit https://www.caledonianblogs.net/ campaignforcomplaineranonymity/ or follow us on Twitter @Campaign4CA. ■

Seonaid Stevenson-McCabe

Seonaid Stevenson-McCabe

Lecturer in Law Glasgow Caledonian University

Annabel Mackay

Annabel Mackay

LLB Student Glasgow Caledonian University

Emma Smith

Emma Smith

LLB Student Glasgow Caledonian University