The Times, 14th May 2021.
You often hear that complainers in sexual offence cases have “an automatic right to lifelong anonymity in the UK”. But this isn’t true. Not legally. Not in Scotland. Here, complainers have no right to anonymity at all. In England, Wales and Northern Ireland, it is a crime to identify complainants in sexual cases. Similar rules apply across the world. Complainants in the Republic of Ireland, Australia, New Zealand and elsewhere have some version of this legal protection.
In Scotland complainer anonymity rests on fragile legal grounds. In the vast majority of cases there are no legal restrictions on naming or identifying people who say they have been victims of sexual crime. The mainstream media — following the Editors’ Code — elects not to identify complainers in these cases, but this is only an ethical convention with no legal teeth. Journalistic ethics do not apply to tweeters and bloggers with opinions, agendas and axes to grind.
Orders under the Contempt of Court Act are the only tools Scottish judges have to give legal force to the principle of complainer anonymity. One such order was imposed in the trial of Alex Salmond. Two people have been jailed for violating that order. The overwhelming majority of sexual offence cases do not benefit from the same protection. In 2018-19, only eight contempt orders were made. Some 2,086 sexual cases were prosecuted in the same year.
Sentencing Craig Murray to eight months’ imprisonment for breach of the Salmond contempt order, Lady Dorrian, the judge, explained the purpose behind complainer anonymity well. It is designed, she said, “to ensure that complainers in such cases are not exposed to unwanted publicity, to enable the witness to speak freely, to limit the embarrassment and awkwardness which may be felt, and to encourage complainers in other cases to feel able to come forward.”
She is right. Something as important as complainer anonymity should not have to rely on a gentleman’s agreement of the press and self-regulation on social media. That’s why we launched the Campaign for Complainer Anonymity at Glasgow Caledonian University last year. We argue that Scotland needs to put this principle on a statutory footing.
As the rest of the common law world recognises, complainer anonymity should be a right, not a privilege. The SNP, Scottish Tories, Liberal Democrats and Greens have committed themselves to enshrining this principle in law in their recent manifestos. As the dust from the election settles, now we need action.