Tuesday, 6 November 2012

Breach of the anonymity of a rape victim

Ched Evans
The law grants anonymity to the victims of certain sexual offences - Sexual Offences (Amendment) Act 1992.  This is subject to a discretion given to trial judges to disapply the anonymity if such a direction is required to induce potential witnesses to come forward and the conduct of the defence is likely to be substantially prejudiced if no such direction is given.  The victim or alleged victim may in writing agree to the restriction being lifted.  Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.


In April 2012, footballer Ched Evans was convicted of the rape of a 19 year old woman.  He was sentenced to 5 years imprisonment.  His application for appeal against conviction and sentence has been refused - BBC 6th November 2012

Nine individuals pleaded guilty at Prestatyn Magistrates' Court to the offence under the Sexual Offences (Amendment) Act s.5 - see Huffington Post 5th November.  Prosecutions for this offence require the consent of the Attorney-General.  The nine had revealed the identity on Twitter / Facebook  of Ched Evans' victim.  It is also reported that some of the defendants launched abuse at the victim.

In court, the defendants claimed that they were not aware that naming her was a criminal offence.  In the absence of sentencing remarks from the District Judge (Magistrates' Courts) who handled this case, this element of the media reporting must be taken at face value.  Such claims are generally dealt with swiftly by  invoking the rule that Ignorance of the Law is no excuse.  Ignorance of, or a mistake as to, the law is generally irrelevant as the citizen is presumed to know the law of the land.  This presumption applies despite the immense complexity of modern criminal law.

The offence is triable summarily (i.e. triable in the Magistrates' Court) and has a maximum penalty of a fine of £5000 (i.e. Level 5 on the standard scale).  In the event, the defendants were each ordered to pay compensation of £624 each.  Precisely how the sum was arrived at is not reported.  Magistrates' Courts Sentencing Guidelines (pages 165-167) indicate an award of "up to £1000 for temporary mental anxiety (including terror, shock, distress) not medically verified."  It should also be noted that any views of the victim about compensation are to be considered.  The guidance states:  "The victim’s views are properly obtained through sensitive discussion by the police or witness care unit, when it can be explained that the offender’s ability to pay will ultimately determine whether, and how much, compensation is ordered and whether the compensation will be paid in one lump sum or by instalments."

Awards of compensation by criminal courts require an offender to provide financial compensation for loss or harm caused by the offence.  These orders are designed for straightforward cases.  Compensation may be a sentence in its own right or an order ancillary to some other form of sentence - Powers of Criminal Courts (Sentencing) Act 2000 s.130.  The amount of compensation shall be such as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor.  The means to pay of the defendant has to be taken into account.  Where the court considers that it would be appropriate to both fine the offender and make a compensation order, preference may be given to compensation where the offender has insufficient means to pay both.

In the Magistrates' Court, compensation is limited to a maximum of £5000 - Powers of Criminal Courts (Sentencing) Act 2000 s.131.

Since the offence has a maximum penalty of a £5000 fine, it is not possible to sentence the offender to either community sentences or imprisonment: Criminal Justice Act 2003 s.150A

A tenth defendant pleaded not guilty and was bailed to in court on 21st January.

The Daily Mail was singularly unimpressed by the sentencing - £624 insult to a rape victim ... The newspaper reports a comment from Rape Crisis Leeds - ‘The fine is outrageous. The law, which protects the anonymity of rape victims, needs to be adequately applied.  If somebody breaks the law they should go to jail – and not be given paltry fines. Someone senior needs to have a word with that judge.’


The problem with such comments is that they are based on the essential inaccuracy that it was possible for the judge to have sentenced these offenders to imprisonment.  He could not have done so for the offence with which they were charged and, therefore, could not do anything other than impose a financial penalty.  It seems that, given the means of these offenders, he opted for pure compensation as a recognition of the distress caused to the victim.

Whether these offenders could have been charged under the Communications Act 2003 s.127 is of interest since that section has been used in a number of cases recently though in the "Twitter Joke" case it received a bad press.  This section addresses "grossly offensive" messages.  It would be for the trial court to decide whether the actual remarks were "grossly" offensive.  A charge under this section would have raised the ante to 6 months imprisonment.

To my mind - here is a case where sentencing remarks would have probably explained much and enabled the public to be far better informed than the available media comment.
 

7 comments:

  1. 17 were arrested initially. One 17 yr old was given a "final warning". Jurisdiction enters into it, any comment (name) printed abroad is not liable to UK law (Thankfully). The charges were Malicious Communications, harassment and GBH (mental cruelty. Yes, me too). The trial was to have gone to Crown Court but a "deal" was struck, don't believe all you read in the Daily Mail, luv, C x.

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    1. The post deals only with the actual case at Prestatyn Magistrates' Court. Had different charges been pressed then an issue of "allocation" would have arisen. However, the actual charge was under the 1992 Act which is triable ONLY in Magistrates.

      I certainly do not believe either ALL (or much) of what is in the DM. The post actually highlights one of the inaccuracies they reported. My plea - repeated in several other blogposts - is for publication of sentencing remarks. It is sometimes done and here it would have been most useful.

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  2. FWIW, I just submitted the following petition to http://epetitions.direct.gov.uk/:

    Custodial option for those who name a rape victim

    We, the undersigned, call on Parliament to amend section 5(1) of the Sexual Offences (Amendment) Act 1992 to allow the judiciary the discretion to hand down a sentence of imprisonment (of, say, a year) in cases were the publication of information identifying a victim of a sexual offence (in violation of that Act) occurs; especially were the judge is of the opinion that it occurred both deliberately and with malice, and/or with the aim(s) of discouraging the reporting of sexual offences or punishing the victims of such offences.

    Whilst, one presumes, in some such cases, that the option of prosecuting the publisher additionally for contempt of court, malicious communications (Communications Act 2003 s.127), harassment or (psychological) ABH might be available (allowing such a custodial sentence), prosecutors have not done so (presumably because of the complexity of proving such offences).

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    1. You will face a challenge - at present rape trial defendants (Assange plus MacDonald who was acquitted in the Evans case) have no anonymity. Contrary to ECHR legislation, n'est pas?

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    2. Joe was writing about the anonymity given to the victim of a sexual offence. He was not talking about defendants. Joe argues that the section 5 offence should be made imprisonable.

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  3. If a custodial sentence were available and imposed - so much for any compensation. Not usually possible.

    And any order has to be within the payer's means.

    As for the Rape Crisis Centre and "Someone senior needs to have a word with that judge" - no thank you, we have an independent judiciary.

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  4. I think the other danger with criticizing the £624 as 'an insult to a rape victim' is the temptation to blame these people for the main crime. It's important to remember they didn't rape her. I think this was also what might have been happening with Matthew Woods and his jokes.

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