NI takes lead on anonymity for sexual offence suspects
The issue of whether suspects in sexual offences cases should be entitled to anonymity until they are charged has long been a topic of debate, with an increased focus since the case of Sir Cliff Richard in 2014. Many campaigners have long been calling for statutory protections.
On 28th September 2023, new statutory protections came into force in Northern Ireland, under the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022, which do exactly that.
Under the new statute:
- There is a statutory right to anonymity for suspects up until the point of charge, and those who are never charged are entitled to anonymity for their lifetime and for 25 years following their death.
- The right to anonymity for victims of sexual offences is extended until 25 years after their death.
The above provisions cover actual identification by name or through publication of details which lead to the identification of a victim or un-charged suspect. The penalty for breaching the statutory restrictions is up to 6 months’ imprisonment.
In addition, the public will be excluded from court in serious sexual offences cases. Only "those necessary to the effective functioning of the proceedings, and bona fide representatives of the press, will be allowed in the court during Crown Court trials and appeals hearings in the Court of Appeal".
This measure is a result of Review findings which found that having unrestricted public access to these cases caused the complainants to feel humiliated and intimidated, and deterred them from coming forward. According to the Northern Ireland Department of Justice the "exclusion of the public from court in these cases is an important step in giving greater protection and support to victims"
Obviously the absence of the public from court is a substantial change, but does the right to anonymity for suspects prior to charge change the current legal position for NI publishers and journalists?
As a matter of law, following Cliff Richard’s privacy case against the BBC and several subsequent cases, it is now well established that suspects already have a right to privacy until they are charged.
But, what are the consequences if that right to privacy isn’t respected by publishers? Until now, the remedy has been limited to a civil claim, usually for an injunction against the publisher, and certainly for significant damages and legal costs.
So the main difference created by the statutory measures in Northern Ireland is that the potential penalty for publishers is far more severe - a criminal conviction and up to 6 months in prison. This brings the penalty in line with those for breaching reporting restrictions or committing contempt of court. This obviously ups the stakes for publishers and editors. The right to claim civil damages will not have been affected.
The addition of the anonymity lasting for 25 years following the death of an uncharged suspect or victim is the other novel aspect of the new statute.
Until very recently, Northern Ireland lagged a long way behind England and Wales regarding reforms of libel laws, but on the issue of sexual offences anonymity and protection, it has taken the lead.
In a press release to publicise the new law, Richard Pengelly CB, Permanent Secretary at the Department of Justice, said: "I hope that all these measures will enable victims to have greater confidence in the criminal justice system and that, rather than suffer in silence, they will feel able to report when they have been the victim of a sexual offence, knowing that these further protections are in place."
This is a laudable intention, of course, but what price open justice? Some might be asking whether the NI Assembly gone too far and forgotten the importance of open justice.
And is this just a start, with this Act being a precedent which the other home countries will follow?
Only time will tell whether the provisions have the desired effect, but meanwhile, publishers and journalists in the jurisdiction will need to exercise a new level of caution when it comes to reporting these kinds of cases.