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Law Column: Anonymity in the courts

footansteylogonewA number of recently reported cases have shone a light on some of the more unexpected provisions of the commonly used legislation that provides anonymity in respect of court proceedings.

We all know that victims of sexual assault are entitled to lifelong anonymity in respect of the offences committed against them.  However, in cases where allegations made are later dropped, or where the accused has been cleared at trial, what happens to the anonymity granted to the alleged victim?

Section 1(1) of the Sexual Offences (Amendment) Act 1992 provides that where an allegation has been made that a relevant offence for the purposes of the Act, e.g. Rape, has been committed against a person, that person is entitled to anonymity in respect of those allegations during their lifetime.

Of course, a victim of sexual assault can waive their right to anonymity, and in rare cases a judge can order that the anonymity be withdrawn in the interests of justice.  However, in the absence of this, the right to anonymity will remain in place even in circumstances allegations are dropped, or if a defendant is found not guilty at trial.

The only other exception to this rule is found at section 1(4) of the Act, the effect of which is that an alleged victim who is subsequently prosecuted for an offence in relation to the reporting of the alleged sexual offence in question, such as perjury, will lose their anonymity and can therefore be identified in the press.

In the latter part of last week former Premier League footballer, Adilson Tavares Varela a.k.a. Cabral, was reported as criticising the anonymity provisions following his acquittal of two counts of rape.

Speaking out following the conclusion of the case, Cabral is reported to have highlighted what he perceives to be the inequities in the current system, claiming that he felt it to be unfair that the woman was able to go on living normally, following the verdict in the case which was described by Judge Jeremy Richardson QC as “weak”, whilst his reputation was “put on the line”.

This is not the place to debate the rights and wrongs of the current anonymity provisions for victims and alleged victims of sexual assault, suffice to say that there is clearly a fine line between protecting genuine victims from further distress, and inadvertently providing a shield for those who, for whatever reason, make false accusations of sexual assault.

Another recent case, this time in the Court of Protection, raised an interesting point concerning anonymity where it was held that in contrast to sexual assault anonymity, which only persists through the lifetime of the subject, the order that granted anonymity to the “woman who lost her sparkle” was to be extended to cover reports of the inquest into her death.

Lawyers for the media argued that given that the woman was now dead, she no longer had any “reputational rights”, and that to continue to restrict reporting of her identity was an excessive curtailment of press freedom.  In contrast, the lawyers representing the children of the deceased woman argued that the case engaged the Article 8 privacy rights of the family, claiming that they would be subject to unnecessary intrusion should the identity of their mother be reported in the press.

The Judge in the case held in favour of the family, stating that there had to be a balancing exercise between the risk of harm to the family, against the public interest in naming the deceased and that in this instance the test concluded firmly on the side of the rights of the family.

Although not unprecedented, the decision of the Court in this case is a significant reminder that unlike issues such as libel, not all legal rights end with the death of the subject and despite what logic may suggest, each case must turn on its own facts.

So, the message here is that even in cases where it seems sensible to conclude that an order may, or should, have lapsed, it is important to check with the Court before taking any decisive action as we know that a breach will almost certainly have serious personal and financial consequences.

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