The recent conviction of The Sun's former editor has brought the problems of reporting sexual offence cases in the criminal Courts into sharp focus – and it shows how even the most careful and conscientious journalists can end up in hot water.
When considering contempt and reporting restrictions, it is better to err on the side of caution than risk a criminal conviction.
The Sun went to great lengths to disguise the identity of the 15 year old victim of the footballer Adam Johnson in a photo they had taken from a private Facebook account.
The Sun's editor at the time, David Dinsmore, and his team cut the image of Johnson and the girl from its background, replaced the background with a different scene, photo-shopped the girl so that her clothing, hair colour and length was different and replaced her head with an egg-shaped blank.
But it was not enough.
The judge was satisfied that the breach was not deliberate. However, he held that the original photo could be recognised by people who had seen the Facebook page before it was taken down after Johnson's arrest.
As a result, The Sun's editor was found guilty of breaching the Sexual Offences (Amendment ) Act 1992 (the 1992 Act), fined £1,300 and ordered to pay £1,000 to the girl.
In disguising the photo, the Sun had applied the test: "Can this person be identified by the man and woman in the street?"
But most lawyers would argue that this was the wrong test. The actual test used by lawyers is: "Is this picture likely to lead members of the public – including people who know her – to identify the girl as the alleged victim?"
The Sexual Offences (Amendment) Act 1992 states that where an allegation has been made that a sexual offence has been committed against a person, no still or moving picture shall be published in that person's lifetime if it is likely to lead members of the public to identify the alleged victim.
This lifetime anonymity is automatic and applies to a wide range of sexual offences. The anonymity applies to allegations made not just to the police, but, for example, in a newspaper, to an education authority, in an employment claim. The anonymity applies to allegations of historic sex abuse as well as current.
Unhelpfully, the full range of sexual offences is not to be located in the 1992 Act alone. The 1992 Act was amended by the Sexual Offences Act 2000, which is where the full list can be found. Last year, all offences under the Modern Slavery Act 2015 were added to the 2000 Act, which means that all alleged victims of human trafficking – not just for sexual purposes – also have lifetime anonymity.
Section 1 (2) of the 1992 Act states that when someone is accused of a sexual offence, nothing can be reported that may lead to the identification of the victim. So if a parent or a teacher is accused of a sexual offence, special care must be taken not report circumstances that would identify him or her.
For example: a P.E teacher, + a 13 year old girl, + after a netball game + at a private school, may be more than enough for members of a school community to work out who the alleged victim is.
Those of us who look at a lot of crime copy know that unfortunately, sexual offences often happen in families. This means that naming the parent/guardian Defendant can easily lead to the identification of the victim.
Editors often have to choose between naming the defendant but leaving out the familial relationship, and anonymising the defendant in order to reveal that it happened within a family.
Identifiers such as age, location, relationship, year of offence and details particular to the circumstances, such as the offence occurred in a bedroom or bathroom, will often be giveaways. Care must also be taken to avoid jigsaw identification, either by details reported in your newspaper and others or in previous reports of the case.
On very rare occasions, the Court will make a direction waiving the anonymity in order to encourage other victims or witnesses to come forward. The victim can also waive anonymity. The waiver must be in writing and signed by the victim who should confirm that he or she was not coerced into agreeing.
David Dinsmore's offence demonstrates how the 'unknown unknowns' can catch an editor out. Second-guessing the identifiers is a dangerous game. There may be identifiers known to the victim's community which are not obvious when the copy is edited.
This article was published on the specialist journalism website www.holdthefrontpage.co.uk. For more information on this matter please contact Jo Vale, solicitor on 01392 685375 or email [email protected]