The first batch of prosecutions for ‘revenge porn’ since the new offence was introduced in April this year raises difficult questions about the identification of victims of such crimes.

By 7 August, 10 people, (nine men and one woman) in separate cases had pleaded guilty to the new crime. Five were convicted and received community orders, suspended sentences and one three month custodial sentence. The remaining five were yet to be sentenced.

The new offence under section 33 of the Criminal Justice and Courts Act 2015 is the sharing of private, sexual material, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress. It was created to fill a perceived gap in obscenity and harassment legislation to include intimate sexual material which is posted maliciously on Facebook or other social media by someone close enough for the victim to have trusted them with intimate photos.

The DPP Alison Saunders describes the offence as “a particularly distressing crime for the victim which is often, but not always brought about by the vengeful action of former partners”. She made it clear in recent CPS guidelines to prosecutors that she wants to avoid victims being identified.

However, the new offence does not provide automatic anonymity for the victim, unlike that afforded to victims of sexual offences such as rape.

None of the reports I’ve read of the cases so far have named the victim, but in theory a newspaper could go ahead and identify the complainant unless the judge has made a specific order preventing it.

Sometimes the intimate images broadcast by the defendant have included the name and address of the victim and links to her social media profiles. If these have been shared by dozens or hundreds of people, arguably the horse has bolted and anonymity for the complainant is impossible.

The DPP wishes to encourage victims of this new offence to come forward. It could be argued that the lack of an anonymity provision in the legislation will have the opposite effect, leading judges to want to find ways of protecting the victim’s identity.

There is nothing in the judge’s repertoire of reporting restrictions which fits the bill in this case. It is not a sexual offence, and sections 45 and 45A of the Youth Justice and Criminal Evidence Act 1999 only apply to people under 18.

In one of the five recent convictions, the judge ordered a restriction under section 46 of the Youth Justice and Criminal Evidence Act 1999, to prevent the victim being named. Section 46 is a discretionary lifetime reporting restriction which provides anonymity to adult witnesses who might be afraid of giving evidence, to ensure they co-operate with proceedings.

But in this case the defendant pleaded guilty, so there was no trial and no evidence. In such a case, it would be open to the newspaper to challenge a s46 order on the basis that it was inappropriate, and make representations to the judge to have the order lifted.

However, when the defendant pleads guilty (as has been the case in all of the prosecutions so far), the case is disposed of quickly, and then the judge no longer has jurisdiction and therefore cannot lift the order, leaving the newspaper unable to challenge the lifetime restriction.

What is more, if “no matter relating to the witness shall during the witness’s lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings”, it could easily be the case that anyone who knew the defendant will know the victim was his ex-girlfriend. Therefore naming the defendant would identify the victim, making it very difficult to report the case at all.

Until further guidance is issued, or a legislative change occurs, the question over whether to name victims of revenge porn in the absence of any Orders to the contrary, remains an editorial and moral one. As the number of convictions for this new offence increases, this currently grey area may become more black and white. In the meantime, editors should continue to be cautious when considering how to report such cases.