With the Summer in full swing, the usual lull in legal news is well under way – but last week’s case involving illicit filming by a crew of South Yorkshire Police’s helicopter raised some tricky issues which no doubt kept local journalists and their lawyers on their toes.

The facts are reasonably well known by now. Nine years ago, a married couple were filmed by the police helicopter having sex in their garden, which was a perfectly legal activity for them.  Four crew members were charged with misconduct in a public office, but last week, they were acquitted by the jury.  A fifth man, who had previously pleaded guilty, was jailed for 12 months.

At the beginning of the trial at Sheffield Crown Court, the Judge made an order which prohibited the identification of other people who had been filmed sunbathing au natural, without their consent.

But the couple who were filmed having sex had refused to take part in the prosecution, and so the Judge decided that because they were not witnesses, they could not be protected by an anonymity order. The most he could do was make a temporary postponement order until the end of the trial, which he did.

At the end of the prosecution case, the Judge said it was difficult to see any basis for continuing to ban the couple from being identified. Nevertheless, the prosecution persevered in seeking anonymity for them, a decision which prompted several national newspapers to intervene.

Counsel for the prosecution argued that the woman was the victim of a sexual offence, and so was entitled to automatic lifelong anonymity.  He based his argument on the fact that in a statement, the woman said she did not consent to being recorded as having sex – even though the prosecution had already told the court that the defendants had not been charged with voyeurism because of the difficulty in proving that they were motivated by “sexual gratification”.

Conversely, counsel for the newspapers argued that no sexual offence had been committed, and he invited the Judge to give guidance the issue – which he declined to do.

The Judge indicated that that he thought the woman could well be a victim of voyeurism, so she might well be entitled to lifelong anonymity. However, he then added that as no formal complaints had been made, it was not for him to decide if the woman had been the victim of sexual offences: “That’s not a matter for me. I can’t say any more“.

The upshot was that His Honour concluded that he could not resist the press’ applications for the couple to be identified, and for the couple’s statements and pixelated footage of them (which had been shown to the jury) to be released.

But he agreed to the press’ arguments reluctantly: “It seems to me, with regret, that I’m not in a position to resist any application for publication in this case.”

So what does this decision tell us?

Well, when it comes to anonymity in criminal cases, the only relevant question is: were the defendants prosecuted for sexual offences?

If the answer to that question is ‘yes’, then as all journalists know, the couple must not be identified. On the other hand, if the answer is ‘no’, then the couple have no such right, and could be identified in the usual way.

The facts underlying this case were pretty unique, and the application for anonymity turned on the case’s own special facts. But it’s evident that the press needs to remain vigilant; attempts to restrict and limit open justice continue to occur on a fairly regular basis.

PS   Although permitted to identify the couple, at least one local paper decided not to do so.

In an editorial, the Rotherham Advertiser’s editor Andrew Mosely wrote: “There is no doubt the publication of their names and images of them would not only have an adverse effect on their lives, but also the lives of their daughter and close family and friends”.

It’s on occasions like this that Editors encounter a stark truth: the law is one thing; doing what’s right by your readers is often something else entirely.