Craig Murray’s Newsnight outburst: the law on anonymity should be tightened

by Carl Gardner on August 21, 2012

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?

{ 14 comments… read them below or add one }

1 Fergus O'Rourke August 21, 2012 at 17:03

1. Is it really the case under English law that even a rape complainant cannot identify herself as the alleged victim ?
If so, loosening seems the more appropriate way to go.

2. Craig Murray says that the complainant in question has indeed voluntarily and repeatedly self-identified in public. Surely this makes it wholly inappropriate to criticise him for it ?

2 Shannon fraine'hawkins August 21, 2012 at 17:13

I agree. As both woman have been named not only by Documentry makers / news channels. As well as one identifying herself in public, he should not be seen as breaking the laws or comitting any offense. Why is it that the defendant is always named & shamed before the case is even heard. I believe that this too is wrong,and they should not be identified publicly until case proved. If a defendant is proven to be not guilty it can totally ruin thier life too. Specifically if they didn’t rape anyone in the first place. .

3 Carl Gardner August 21, 2012 at 17:28

Fergus,

1. No. Naming the alleged victim is lawful, with her written consent to being named in the programme. How is this relevant in this case?

2. No.

Shannon,

I’ve not said Craig Murray’s broken any law.

The argument about defendant anonymity is one we had a year or so ago, and the position was left as it is (in my view, for good reason). Of course, if you believe suspects and defendants in rape case should be given anonymity, that tends to suggest you must agree with me, in fact, about the importance of anonymity for alleged victims.

I don’t know whether or not Julian Assange is guilty. I presume him innnocent, and think it’s for the Swedish courts to decide.

4 james c August 21, 2012 at 18:29

Carl, what are you talking about? She (who must no tbe named except by journalists) has given several interviews to the press.

5 etta August 21, 2012 at 20:56

CARL – could you explain why you answered as you have here? I am genuinely interested in your opinion.

Shannon:
‘2. Craig Murray says that the complainant in question has indeed voluntarily and repeatedly self-identified in public. Surely this makes it wholly inappropriate to criticise him for it ?

Carl:
2. ‘No’

Why?

I am genuinely concerned, as the ramifications of having such a case (given the whole background and context) legislated in this way, are potentially more than would appear at first glance, it seems to me.

I think it is something of a knife edge balance to achieve a just legislation with appropriate safeguards, where the alleged victim and potential accused are so thoroughly in the public eye (where the police investigation has been leaked, presumably by the police dept ?, where the alleged victim and (even more bizarrely) others involved in the judicial process have openly taken the story to the press and internet, and most especially where the alleged victim herself has sought to publicise her accusations by going to the press in her own name as long as 2 years ago) and where many people have a great concern that there is another agenda.

It seems to me that the safeguarding of three things is required, not just one – the privacy of the victim, the reputation (and in this case actual safety) of a yet untried potential accused, and the public interest (which latter can only be served by thorough public scrutiny).

6 AK August 22, 2012 at 09:24

Carl’s argument:

1. The alleged victim’s name gets 190,000 Google hits after she voluntarily and repeatedly identified herself in public.

2. ?

3. Let’s make even more laws criminalizing speech that could be productively used against people I don’t like!

7 Sandman August 22, 2012 at 11:15

Carl on this one I’m afraid you’re speaking nonsense. The victim had already revealed her identity and given media interviews.

Craig Murray makes a very good point: people who provoke ire to the secret services by whistleblowing etc are routinely framed for some form of sexual deviance. It’s a very effective way to undermine somebody.

I’m not saying that is necessarily what has happened here, but the victim identified herself and it is in the public interest to repeat her name as it assists the public in scrutinising what she has done and said and analyse whether we are looking at a “legitimate rape” (to use the unfortunate term) or a spooks’ honey trap operation.

Why on earth would you want to limit freedom of speech in such circumstances where there is the prospect of secret state involvement?

8 Carl Gardner August 22, 2012 at 11:25

Etta,

You ask my “why”, but you go on to say:

It seems to me that the safeguarding of three things is required, not just one – the privacy of the victim …

My “why” is the requirement to safeguard the privacy of the victim, to use your words. The fact that you’ve written that shows, I think, that you must understand my reasoning, even if you disagree with me.

I’ve only called her an alleged victim at this stage, by the way, because I’m taking Julian Assange’s right to be presumed innocent seriously, as I do the two women’s rights.

9 Carl Gardner August 22, 2012 at 11:31

James c, AK,

Whether or not she’s identified herself is irrelevant. It’s her right to do so if she wants. It’s not Craig Murray’s.

Many people who watched that Newsnight programme will not have known her name before.

10 Carl Gardner August 22, 2012 at 12:00

Sandman,

Craig Murray’s point about people being framed is an interesting one, I agree. Maybe he’s right. It’s not necessary to name any alleged sexual assault or rape victim in order to make the point.

You wrote:

the victim identified herself and it is in the public interest to repeat her name as it assists the public in scrutinising what she has done and said and analyse whether we are looking at a “legitimate rape” (to use the unfortunate term) …

It’s interesting that you’ve used two justifications for the naming: her own self-identification, and the public interest. Do you think one of those alone would be justification enough? Or are both required in your view?

I don’t agree with you about the public interest. If that argument were right, it’d apply in every sexual assault or rape case, wouldn’t it? I think your argument just amount to saying rape and sexual assault victims should never be anonymous. You may think Julian Assange’s case is a special one – but then, any man accused of rape or sexual assault could make similar arguments on a smaller scale, to the effect that his accuser is lying in order to harm him.

On “legitimate rape”, I know you didn’t mean it that way, but I’m afraid your use of the term, even ironically, shows the unfortunate common thread that runs through the recent remarks of Todd Akin and George Galloway, and any dismissal or trashing of the Swedish allegations against Julian Assange using the line that they’re not about “rape” rape.

11 etta August 22, 2012 at 18:42

Dear Carl,

Firstly, in defence of Sandman, about how you have understood what is being said here.

In your response to Sandman, you say:

“On “legitimate rape”, I know you didn’t mean it that way, but I’m afraid your use of the term, even ironically, shows the unfortunate common thread that runs through the recent remarks of Todd Akin and George Galloway, and any dismissal or trashing of the Swedish allegations against Julian Assange using the line that they’re not about “rape” rape.”

But that’s not a fair comment, possibly based (understandably) on a sketchy reading. This isn’t how he has used the term at all, as I read it, ironically or otherwise.

And, though an unfortunate term in some contexts (which he notes in passing) it surely is not so in the context used here, or demonstrating any level of denial about rape.

He is not here feeding into the ”rape’ rape’ controversy with what he says; rather the statement surely just means ‘whether the claims are unfounded or not’ – ie ‘legitimate’, or not – whether they are true or a fit up, not whether what is actually alleged constitutes rape, which, in any case, in this particular instance, as I understand it, isn’t what is being alleged anyway (that’s the other complainant).

I make the point because the subject is naturally emotive and clarification seems important.

Re your previous response to me:

“My “why” is the requirement to safeguard the privacy of the victim, to use your words. The fact that you’ve written that shows, I think, that you must understand my reasoning, even if you disagree with me. ”

But there is no possibility in this particular case of that. That safeguard is comprehensively breached, most relevantly by the complainant herself taking the story to the public via the press. This makes it plain that she is not seeking anonymity. It is also comprehensively breached in the case of the potential defendant.

As such it is in a very different category, and it is a different ‘public interest’ issue altogether than whatever one you meant by saying that ‘if that argument were right, it would apply in all sexual assault or rape cases’.

No, it wouldn’t, it would normally apply to those with a politicised backdrop that are inevitably in the public domain. As I said before, I think balancing the safeguards is not easy, but where the complainant breaches the safeguard (and demonstrates her intention to scrap the safeguard and publicly name herself), and where the potential defendant is also publicly named, the only safeguard left is the public interest. There’s not a lot of point in spilt milking about the other two.

This case is so much in the public domain that it would, in fact, now seem completely impossible for there to be a ‘fair trial’.

And I just can’t see grounds for protecting an ‘anonymity’ which the complainant themselves at a very early stage blew sky high.

Perhaps there might be some legal justification, inasmuch as laws have to cater for inexact circumstances, but the degree of moral outrage, under the particular circumstances, seems, at best, misplaced, and, once one knows the circumstances (which I grant you many people will be reacting in ignorance of), it becomes, I think, insincere.

12 Jason 1990 August 22, 2012 at 22:57

Carl,
I would be interested to hear your views on how this compares with the BBC willingly outing another alleged victim, in similar circumstances, in the Strauss-Kahn case. http://www.bbc.co.uk/news/world-us-canada-14285843

In this case, as in the Swedish one, the alleged victim has willingly and purposely put themselves in the limelight, conducting interviews with media and the like, and yet at that time the BBC thought it relevant to report on the alleged victim.

Why are things so different in the Swedish case that justify the hushing up of what is clearly public knowledge, for anyone with the inclination to look?

13 AJ August 23, 2012 at 00:41

I don’t understand the legal basis for your argument and you certainly don’t provide one. If the right to anonymity has been waived through self disclosure no reasonable person would consider it feasible that it can be reclaimed it a later date.

The UK government is embarrassing itself. Again.

14 Lloyd Barrett September 6, 2012 at 12:25

I thought both of them had gone public in Sweden and therefore any right to anonymity had been waived….confused as to what Mr Murray did wrong here…or this just a British legal quirk…

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