By Abigail Bright
We have all been asked by anxious defendants accused of sexual offences ‘Will my name get in the press?’ and have had to explain that while complainants have anonymity those accused of sexual offences do not. Acquitted clients often feel the stigma and consequences of being accused of this type of offending for a very long time after trial . Abigail Bright however was able to successfully persuade a Crown Court Judge that not only was her client entitled to a reporting restriction providing for his anonymity, but that restriction should continue indefinitely following his acquittal.
After a trial of six days, D was acquitted by a jury of rape. At the PTPH, D was indicted in his birth names by which he was commonly known. A reporting restriction of D’s name before the start of the trial was successfully sought, and post acquittal granted for D’s lifetime or until further order. This appears to be the first time a court has granted a post-acquittal reporting restriction after a rape trial restricting the publication of identifying details of the defendant and the fact of his acquittal. The judge decided that the Contempt of Court Act 1981, section 11, applied. The parties had agreed to refer at the trial to ‘the man’, rather than to the defendant by his name, but the complainant and non-police eye witnesses were not stopped from giving their best evidence by describing events and people, including D, in the words those witnesses wished to use.
The application for a reporting restriction arose from D’s instructions that he had given sworn evidence at his brother’s murder trial, in his real names, at the Central Criminal Court, and his name had been reported by the press, including the BBC and The Times. D had given evidence before the Coroners and Justice Act 2009 introduced power to grant anonymity to witnesses. Having given evidence, D entered into a witness protection re-location programme. At the time he was indicted for rape, he still lived under the same programme.
The judge at D’s rape trial required persuasion that a reporting restriction order should be made and exactly what should be the form and ambit of that order. The reporting restriction sought had several aspects to it (fact of acquittal; AA’s name, AA’s address). The Crown’s position after the verdict was that no continuation of the reporting restriction was necessary: open justice should prevail and indictment for rape was dissimilar to a background of serious organised crime. Against making a reporting restriction order was the fact that D’s name had been given and reported at the earlier murder trial and D had been settled in the witness protection programme for some years and that that protection continued. The judge was ultimately persuaded that D would be at risk of reprisals such that his life would be endangered in the event that the fact of his name and his acquittal of rape were to be published.
Abigail’s submissions focussed on the case engaging two articles of the European Convention on Human Rights, article 2 (the absolute right to life) and why that should prevail over article 10 (the right to freedom of expression and information, capable of limitation).
The judge’s decision to grant a reporting restriction order involved a number of highly practical arrangements. Mention of D’s trial in the Crown Court list (which is hosted publicly on CourtServe daily) was anonymised: this was done by inserting asterisks in place of each identifying number per the ‘T’ number by which Crown Court cases are uniquely identified. Public listings of D’s trial generated the T number T2019****. The parties agreed, endorsed by the judge, that the clerk and usher would refer any inquiries about D’s case (and its reporting as an anonymised ‘T’ number) to the list office. The senior list officer would ascertain exactly the nature of any inquiry and communicate directly to the judge any enquiry. Enquiries established that there had been no reporting of D ’s case as a result of the first hearing in the Magistrates’ Court, which does not publish its court list in a public forum except for noticeboards at that court on the day of hearings. A defendant’s address becomes a matter of public record when recorded on the court file; it is invariably given in open court to identify a defendant when a defendant is first put before a court; and it can be ascertained upon request to a court by the press.
The public interest served by open reporting of the result of a trial is separate to the statutory and absolute prohibition on any reporting of a sex complainant’s name or information that might identify that person’s name (for the duration of the life of that person). Complainants of a wide range of sexual offences are given lifetime anonymity by the Sexual Offences (Amendment) Act 1992. Whilst this statutory protection accorded to sex complainants is distinct from publication of other information, as this case illustrates there may be unusual but compelling circumstances in which is possible to apply for a reporting restriction in order to protect a defendant.
Abigail Bright defended in this case. To read more about Abigail, click here.