The recent prosecution and guilty plea of the Northern Echo for identifying the victim of an alleged sexual assault, is a sharp reminder of just how careful the press has to be when reporting allegations of sexual assault.

The case itself was unusual.  The Echo published a report of a hearing of a non–sexual assault case during which the defendant’s barrister referred to a rape charge against the defendant that had been dropped at an earlier stage of the proceedings. Accordingly, this allegation no longer formed part of the prosecution’s case.  This fact was duly reported in the Echo’s report of the court case.

However, the paper was subsequently charged with the offence of identifying the victim of the alleged sexual assault, contrary to section 1(1) of the Sexual Offences (Amendment) Act 1992.

The Echo had obviously concluded at the time that it was safe to identify the woman in question, no doubt because its article was a court report of proceedings that concerned the non-sexual offence element of the case, and she had been named in open Court.  On the face of it, identification is permitted in this kind of situation (by s.1(4) of the 1992 Act, since you ask).

The Echo originally defended the charge on this basis, a stance which was entirely reasonable and sensible, and one with which most media lawyers would have agreed.

However, following research carried out by the paper’s barrister, highly respected and well known media specialist, Guy Vassall–Adams, the Echo then decided it had no option but to plead guilty to the charge.  A heavy fine was imposed and it was also ordered to pay compensation to the alleged victim as well as the prosecution’s costs.  The total ordered to be paid was in the region of £10,000, which in itself is unusually high and severe.

The case reveals an anomaly in the law.

Every journalist knows that the victims of alleged sexual offences cannot be named during their lifetimes in the absence of written consent.  The fact that no charge is brought is irrelevant; it’s the allegation that counts.

The exemption which allows alleged victims to be identified is sensible enough.  Its effect is usually seen when a person is later prosecuted for making false allegation of sexual assault, when that person is identified in reports of the prosecution.  Obviously, it would be absurd to give anonymity to such a defendant by virtue of that false allegation itself.

So why was the Northern Echo’s case different?  And what prompted the publisher to plead guilty?

Well, it has emerged that Mr. Vassall–Adams carried out research that no-one has carried out before.

According to reports, Mr. Vassall-Adams consulted various documents concerning the origins of the 1992 Act.  He determined that despite what is suggested by the wording s.1(4) of the 1992 Act, the intended consequence of this provision was that victims of alleged sexual offences should retain anonymity in continuing court proceedings, even where the relevant charges had been reduced or dropped altogether.

Hardly surprising, therefore, that Mr. Vassall–Adams has described the situation as “genuinely uncertain legal terrain”.  And it explains why the publisher concluded “…we consider that it is now reasonably clear that…anonymity should continue throughout the proceedings even if a rape charge is dropped…this has led us to review our approach to this case.”

So where does this leave the press?  It must be remembered that this was a pretty unusual case, and the outcome of the prosecution does not set a precedent.  But Mr. Vassall-Adams’ analysis cannot be ignored.  Consequently, making a decision as to whether or not to identify the alleged victim of a sexual offence has just become a whole lot harder.

Footnote – don’t forget that clause 11 of the PCC Code prohibits the identification of the victims of sexual assault even if the press is legally free to identify, unless “there is adequate justification to do so”.  What constitutes “adequate justification” is yet another hard decision with which editors, news editors, and journalist have to wrestle with before deciding whether or not to publish.