LEGAL UPDATE 10.02.06

IDENTIFICATION OF CHILDREN IN CRIMINAL CASES

Former glam rocker Gary Glitter has been the subject of much press attention recently, having been charged with committing obscene acts with two girls (aged 11 and 12) in Vietnam.

On New Year’s Eve The Sun published pictures of these two girls, who appealed to the Vietnamese courts for clemency for Glitter, after his lawyer made compensatory payments to their families. Rape charges were reduced to sex assaults.

In this country, the court has a general power to restrict publication of information relating to children. The Children and Young Persons Act 1933 provides that in relation to any court proceedings the court may direct that no newspaper report is to be published which may lead to the identification of any child or young person concerned in the proceedings. Pictures can therefore not be published of the child or young person in question.

Furthermore, the Sexual Offences (Amendment) Act 1992 imposes a lifetime ban on reporting the identity of the alleged victim of a sexual offence once an allegation that an offence has been committed is made. This lifetime ban can be lifted if the alleged victim provides written consent, but a person under the age of 18 cannot consent to their identity being revealed.

When Section 44 of the Youth Justice and Criminal Evidence Act 1999 comes into force, it will automatically prohibit reporting of any matter which might lead the public to identify a person under 18 as a potential defendant, victim or witness, as soon as a criminal investigation has begun. This restriction will last only until criminal proceedings begin.

The Sun does not have to adhere to these legal rules in the reporting of the Gary Glitter story, because the alleged offences were not committed in this country. However, the Press Complaints Commission Code of Practice must still be observed.

Even where the law does not prohibit it, Clause 7 of the Code provides that the press must not identify children under the age of 16 who are involved in cases concerning sexual offences, whether as victims or as witnesses. The Code does not distinguish between the domiciles of the children, or the jurisdiction of the proceedings, and therefore it could be argued (if a relative of the girls lived over here and so had the right to complain) that The Sun is in breach of the Code in this case.

Newspaper editors often circumvent the restrictions on photographic publications by publishing ‘pixilated’ or ‘silhouetted’ images that are meant to make identification of the subject impossible. Such a technique was used by the Daily Mail to conceal the identity of the six-year-old girl from North Tyneside who was snatched from a bath and sexually assaulted a few days after Christmas. It was also used more recently in The Sun in the exclusive report on the ‘Baby Rape’. Editors must be certain that identification is indeed impossible when they use this technique, because the penalties for allowing a child or young person to be identified as a party to proceedings can be very severe, especially if the child is a sex victim. An intention not to identify, or an honest mistake, provides no defence.

Only editors, proprietors and publishers of newspapers will be criminally liable if a report is published that contravenes the Sexual Offences Acts. In 2001, the BBC was fined £25,000 and an individual journalist £500 for broadcasting the identity of a witness in a sexual assault case who was entitled to anonymity for life under Section 1 of the Sexual Offences (Amendment) Act 1992. The BBC was unable to use the defence that it was unaware that the report contravened the Sexual Offences Acts.

When Section 44 of the Youth Justice and Criminal Evidence Act 1999 comes into force, a member of the media will only have a defence to identification if he can show that the reporting restrictions imposed are substantial and unreasonable, or that he did not suspect or have reason to suspect that a criminal investigation had begun or that his report contained material that would breach any restriction.

Editors must be aware that ignorance is no defence.

James Baker is a trainee solicitor at Charles Russell LLP

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