Last night on the BBC’s Newsnight, Craig Murray, the former British ambassador to Uzbekistan, named one of the women whose evidence has led Swedish prosecutors to seek the extradition of Julian Assange.

I agree with those who think this was a shocking thing for him to do. It shows no regard for the rights of the women involved in this case, and no respect for the important principle, recognised in legislation in England and Wales, that alleged victims of rape and sexual assault should be entitled to anonymity.

But Craig Murray’s done nothing unlawful – and this incident in my view shows that we need to review the law.

The legislation is complex, because different (though very similar) provisions apply in the case of rape on the one hand, and sexual assault on the other. As far as rape is concerned, section 4(1)(a) of the Sexual offences (Amendment) Act 1976 says –

(a) after an allegation that a woman or man has been the victim of a rape offence has been made by the woman or man or by any other person, neither the name nor the address of the woman or man nor a still or moving picture of her or him shall during that person’s lifetime—
(i) be published in England and Wales in a written publication available to the public; or
(ii) be included in a relevant programme for reception in England and Wales,
if that is likely to lead members of the public to identify that person as an alleged victim of such an offence

Section 4(1)(b) goes further:

(b) after a person is accused of a rape offence, no matter likely to lead members of the public to identify a woman or man as the complainant in relation to that accusation shall during that person’s lifetime —
(i) be published in England and Wales in a written publication available to the public; or
(ii) be included in a relevant programme for reception in England and Wales;

and makes an exception for reports of criminal proceedings.

The difference between the two subsections is that subsection (a) applies following any allegation to the police, whether or not anyone is subsequently charged; you might call it the “investigation” anonymity. Subsection (b) only applies from after charge, when the matter is brought before a court – you could call it the “proceedings” anonymity.

Subsection (5) provides that an offence is committed if either of these protections is breached:

(5) If any matter is published or included in a relevant programme in contravention of subsection (1) of this section, the following persons, namely—
(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) in the case of any other publication, the person who publishes it; and
(c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the   service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence …

In relation to sexual assault, anonymity is similarly guaranteed by the Sexual Offences (Amendment) Act 1992, section 1:

(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, neither the name nor address, and no still or moving picture, of that person shall during that person’s lifetime—
(a) be published in England and Wales in a written publication available to the public; or
(b) be included in a relevant programme for reception in England and Wales,
if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime—
(a) be published in England and Wales in a written publication available to the public; or
(b) be included in a relevant programme for reception in England and Wales.

Because of Schedule 6, paragraph 31 to the Sexual Offences Act 2003, “an offence to which this Act applies” includes any offence under Part 1 of the 2003 Act – for example, sexual assault under section 3. In the event of any breach of either of the investigation or the anonymity protection, section 5 creates an offence practically identical to the one that applies to alleged rape victims under the 1976 Act.

It’s clear that Craig Murray has committed no offence under these provisions, and I don’t think the BBC has either.

It’s highly unlikely any of these provisions applies in the case of words spoken in relation to a rape or sexual assault investigation abroad: there’s no textual indication that Parliament intended that, and some of the drafting (in relation to proceedings anonymity, the concept of being “accused” of a crime is defined in terms of English criminal procedure) suggests only domestic proceedings are what Parliament contemplated. There’s an interpretative presumption against doubtful penalisation, so any defendant would receive the benefit of doubt about the legislation’s meaning.

That in itself seems to me a cause for concern, in a world where BBC domestic programmes have many viewers in countries like the Netherlands – not to mention the global reach of BBC World and the World Service. Loose words from talking heads in London may cause serious harm to individuals far away.

Even more problematically, the offences in section 4(5) of the 1976 Act and section 5 of the 1992 Act can only be committed by editors, broadcasters and publishers. That may well catch a blogger (it seems to me the concept of publisher is perfectly apt to cover blogging, even though blogging didn’t exist last century) but it does not catch an invited speaker who names an alleged victim of rape or sexual assault.

In my view this is unsatisfactory. I’ve been accused sometimes of wanting to regulate anything that moves – and that may be a fair criticism of me here. Perhaps one unusual case, involving one guest on one programme, is insufficient justification for what would, I accept, be a restriction on free speech. But the anonymity of alleged rape and sexual assault victims is an important issue too, in a free society trying to be good, and if we wish to maintain it our laws must be fit to do so.

If we think it important to protect alleged rape victims at home, shouldn’t we extend that protection to those involved in parallel cases abroad – who may be of great interest to the British and global media? Rape is rape, wherever committed. At least we should consider extending both anonymities to cases subject to the European Arrest Warrant procedure.

While a newspaper or website can exercise prior restraint on careless writers through the editorial process, and while the Attorney General’s consent is needed for any prosecution (an important safeguard for the media), why should the BBC alone be potentially liable in a case where the legislation does guarantee anonymity? Is it right that an invited guest on a live programme is free to flout this important principle without fear of any legal consequence?