It is sometimes the case that the most seemingly well-settled and uncontroversial law is that which can surprise us from time to time.

In the last two weeks, I have encountered an apparent “quirk” in the law concerning the reporting of allegations of sexual offences which seems to have arisen as a result of a very different interpretation of some longstanding existing legislation.

It has always been widely accepted that pursuant to Section 1(1) of the Sexual Offences (Amendment) Act 1992, if individuals allege that they have been the victims of sexual assaults, they are automatically granted anonymity for the rest of their lives.

As far as we all understood, this did not come with any caveats, so if an allegation is made (regardless of how, or to whom, or in what context) the provision kicks in, and even if there no subsequent prosecution, it is prohibited to publish any detail which is likely to lead to identification of that individual as an alleged victim of sexual assault.

All with me so far?

However, a recent decision from the Employment Appeal Tribunal seems to suggest the position is rather less clear cut. In the case of Z v Commerzbank AG and Ors Mr Justice Kerr held that the anonymity is only granted to those who make such an allegation in a criminal context, stating that “I do not think the lifelong anonymity provided for in section 1(1) is triggered by, say, an allegation made informally by one friend to another in a public house.” 

Kerr J. further went on to say that he considered the correct interpretation of “allegation” as set out in Section 1(1) to be “not just  of conduct amounting to a crime; it must be made in circumstances where it has the potential to be tried as a crime…I think the accurate formulation is that “allegation”…refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought.”

Heading to the source, section 1(1) states “Where an allegation has been made that an offence to which this Act applies has been committed against a person, neither the name, nor address, nor any still or moving picture of that person shall during that person’s lifetime (a) be published in England and Wales in a written publication available to the public; or (b) be included in a relevant programme for reception in England and Wales, if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.”

Admittedly, I am not a judge but as far as I can tell, there is no wording in the legislation itself which is either supportive or critical of Kerr J’s analysis.  So, it seems that it is a question of judicial interpretation in every instance.

For me, the problem with this approach is that it places a huge responsibility on the journalist/editor to make a judgement about whether or not the allegation is likely to lead to a charge.  How can a journalist possibly make this assessment?  Is the expectation that no report is be made until such time as a charge is brought and the anonymity confirmed?  What about those incidents of historic sexual abuse where an alleged perpetrator is either unfit to stand trial or dead?

In short, if there is no prospect of the alleged offender being charged, on this interpretation, the alleged victims would be denied anonymity.  I’m as keen on open justice as the next person, but surely this cannot be fair, just, or what the legislation intended?

My colleagues and I always advise caution when dealing with a potential victim of an alleged sexual offence.  It will be a brave reporter or editor who decides to ID someone who alleges that they are the victim of a sexual offence, by relying on this judgment.

In fact, my guess is that almost every media lawyer will advise: “don’t do it”.