Sexual offence anonymity – newsrooms beware

JOURNALISTS need to be very careful with any detail they report about an alleged victim of a sexual offence, as the conviction of former Sun Editor David Dinsmore demonstrates.

The Sun published a photograph of the 15-year-old victim of Adam Johnson- the Sunderland and England international who was convicted of sexual offences against her last week.

The Sun had done a number of things to try to ensure she could not be identified from the photo – they had changed her hair length and colour; they had removed the entire background of the original photo and they had Photoshopped her onto an entirely unrelated background.

However, this was not enough to avoid a decision to bring an action and for the former editor of The Sun to be convicted.

What journalists should note from this case is the impact a Facebook audience had on identification of the victim. The court said that some Facebook users familiar with the image would still recognise her despite The Sun’s efforts.

It is important to understand the test that is applied to determine whether a victim has been identified here. It is not ‘can any man or woman in the street identify the victim from details in the report’. The test is ‘can someone who already knows this person realise they are a victim as a result of any detail in this report.’

People who know the person will have lots of knowledge of context and background which might allow them to identify a victim where the ordinary man or woman in the street would not.

For example, one newspaper was prosecuted for including the fact that the victim in a case had cerebral palsy. This was given in open court and no order was made preventing publication – the courts expect publishers to make their own judgement here and to exercise proper caution.

That detail would not allow the whole world to identify the victim, but in the context of the case, knowing who the defendant was and the area in which the offence was committed, it was a detail leading to identification and the publication was convicted.

Some points to remember about this area of law:

• A victim gets legal anonymity as soon as the report the offence
• That report does not have to be to the police, it could be to anyone – a doctor, teacher, work colleague, passer-by – any third party
• Anonymity lasts a lifetime and is unaffected by the outcome of any proceedings
• Adult victims can waive their anonymity, in writing
• Child victims cannot give such a waiver and their parents or guardians have no legal power to do so either
• An alleged victim who is subsequently prosecuted for an offence in relation to the report, such as perjury; perverting the course of justice or wasting police time lose their anonymity
• Prosecutions for identification are sometimes brought against the publication and the ‘responsible journalist’ which is often the editor, but chief subs, night editors and reporters have also faced such a prosecution
• Prosecution is for a sexual offence

It is this final point that journalists should be particularly wary of – this is a criminal conviction for a sexual offence and can have a massive impact on a journalist’s life.

If convicted you have a criminal record which will come up when anyone does a DBS (formerly CRB) check on you. The result they will receive is that you have been convicted of an offence under the Sexual Offences Amendment Act.

One editor I know was facing such a prosecution and was planning a holiday to the US at the same time. He was told by the US authorities that he would not be granted a visa is he was convicted.

In many cases the CPS has dropped the case against the journalist where the publication itself enters a guilty plea. However, this did not happen in the case of David Dinsmore, a clerical error in this case meant The Sun escaped prosecution whereas he did not.

In my view this is an appalling piece of law. To equate what is often an accidental identification of a victim with an act of sexual violence is repellent. It is yet another piece of law used to criminalise journalism.

Of course journalists should take great care with victims and by all means prosecute them where they do not – but not for a sexual offence. It could quite easily be redefined in a Courts Act, or as a contempt.

Until that happens though, this is yet another area where great care needs to be taken by journalists.

If you want your newsroom properly trained to avoid this, and other legal problems, details of the courses I offer can be found on the Training page.