Some questions the Tribune will need to address

**Note, I have no legal training so take a health warning as you read and feel free to forward any correctives**

Since the Tribune articles on the alleged sexual abuse by ‘X’ some people, myself included, have been pondering the legality of a small element of the reporting in particular the potential identification of a complainant in a case through the information published. Despite the recent press release from the Tribune we are unlikely to have heard their full defence while the possibility of legal action is being floated. However, while recognising that, based on what is in the public domain some questions on elements of their coverage have arisen.

Legal issues which could be raised centre on elements of the Sexual Offences (Amendment) Act 1992 as noted in this Judicial Studies Board document on reporting restrictions: (more below the fold)

Section 1 of the amended 1992 Act (Sexual Offences (Amendment) Act 1992) imposes a lifetime ban on reporting the identity of the alleged victim once an allegation that an offence has been committed is made and this continues after someone has been charged.

The offences to which this automatic restriction applies are set out in section 2 of the 1992 Act and include rape, indecent assault, and indecency with children as well as the vast majority of other sexual offences.

Since the restriction is mandatory no order of the court is required even in the case of a child victim.

Detail from the Act on Anonymity:

Anonymity of victims of certain offences.

— (1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, 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.
(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.
(3) This section—
(a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and
(b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3.
(3A) The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a) the person’s name,
(b) the person’s address,
(c) the identity of any school or other educational establishment attended by the person,
(d) the identity of any place of work, and
(e) any still or moving picture of the person.
(4) Nothing in this section prohibits the inclusion in a publication of matter consisting only of a report of criminal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with the offence.

Offences that can be committed under the Act and waivers:

5 Offences

(1) If any matter is published or included in a relevant programme in contravention of section 1, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale— (note this seems to indicate a maximum fine of £5,000 on conviction)
(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) in the case of publication in any other form, the person publishing the matter; and
(c) in the case of matter included in a relevant programme—
(i) any body corporate engaged in providing the service in which the programme is included; and
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
(2) Where a person is charged with an offence under this section in respect of the publication of any matter or the inclusion of any matter in a relevant programme, it shall be a defence, subject to subsection (3), to prove that the publication or programme in which the matter appeared was one in respect of which the person against whom the offence mentioned in section 1 is alleged to have been committed had given written consent to the appearance of matter of that description.
(3) Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.

(4) Proceedings for an offence under this section shall not be instituted except by or with the consent of the Attorney General.
(5) Where a person is charged with an offence under this section it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.
(6) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person purporting to act in any such capacity,
he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.
(7) In relation to a body corporate whose affairs are managed by its members “director”, in subsection (6), means a member of the body corporate.

Applicability to the north of Ireland:

8 Short title, commencement and extent, etc

(7) This Act shall not extend to Northern Ireland, except so far as it relates to courts-martial and the Courts-Martial Appeal Court and to such a publication in, or such an inclusion of matter in a relevant programme for reception in, Northern Ireland as is mentioned in section 1(1) or (2) as adapted by section 7(2)(b).

Other areas to note from Judicial Studies Board:

The victim or alleged victim may, in writing, agree to the restriction as to the reporting of his/her identity being lifted

6.1. Jigsaw identification

Particular problems may arise where an order restricts publication of the identity of a victim or witness, and different reports, each complying with the requirement not to identify the victim or witness provide information which when put together makes the restricted identification clear. For example, if one report refers to an unnamed defendant having been convicted of rape of his daughter and another report names the defendant but does not identify the relationship between the defendant and the witness. However, newspapers, magazines, broadcasters and their regulators have aligned their respective codes so that the media adopt a common approach which avoids such problems when reporting sexual offences (see Code of Practice upheld by the Press Complaints Commission, BBC Producers Guidelines, Independent Television Commission Programme Code, Radio Authority Programme Code).

From previous press releases the complainant in the case approached the Tribune and gave substantial detail on allegations of abuse, it also seems clear at the 11th hour they sought to withdraw consent for publication.

As has been noted law in this area seems pretty straight forward – from the moment of an allegation of sexual abuse until the complainant dies it is illegal to give any information that may lead to their identification. Indeed it is permitted to give full details of an alleged offence and even the accused’s name as long as it doesn’t compromise a victim’s identity.

The only permitted legal exceptions are when in receipt of a waiver from the complainant or when a judge directs that identification is permitted. The Tribune hasn’t publicly stated it has a waiver (if it did any legal questions would begin to evaporate) but we don’t know what their legal advice is, or the entirety of their interaction with others on this.

So what is the defence from the Tribune for not respecting a claimed withdrawal of consent in this case? I can see the public interest, I can see the potential for the person involved to have been pressurised into withdrawing their interview. I can’t currently see the legal defence for the possibly identifying material that ended up in print, not in their articles or press release anyhow.

Slugger understands the Tribune intends to cover these issues in Sunday’s paper and they have indicated to us they have the material for a robust defence (we have not had sight of any of this and cannot comment on its veracicty and/or weight) so for the present there are valid questions that remain unaddressed.

Additionally, hopefully the above gives some indication of the legal concerns that Mick has to take into account for blog entries and comments on this topic. Until we see the Tribune’s clarification Slugger has to ensure the law as it stands is complied with here.

Given the legal issues in relation to this case please be cautious in your comments.