Belfast Telegraph

Strict rules of anonymity in sex cases also apply to online world

By Paul McDonnell

The recent high-profile rugby rape trial and the case in England involving Tommy Robinson have again thrown into sharp focus the issues faced in reporting and commenting upon cases involving sexual offences.

The outpouring of social media comment on the former was unprecedented in Northern Ireland and had to be addressed by the court.

The use of social media is clearly now an intrinsic part of the fabric of communication in our society and there are many positive aspects to the way in which it enables the sharing of information, expression of views and, from a legal perspective, freedom of speech.

Such commentary, however, must nonetheless still comply with strict laws on communications regarding sexual offences.

The law provides victims and alleged victims of sexual offences lifetime anonymity.

No matter relating to a victim or an alleged victim of a sexual offence shall, during his or her lifetime, be included in any publication if it is likely to lead members of the public to identify him or her as the victim or alleged victim of the offence.

Publication includes speeches or information shared on social media. There is a sound basis for this law, as victims are entitled not to endure embarrassment or further trauma when testifying.

Recent trials of these cases, however, highlighted a number of other issues surrounding commentary on the cases as they were ongoing, such as the right of the defendants to a fair trial and the extent to which the public should be entitled to attend such trials.

This prompted the Criminal Justice Board to commission a review, by Sir John Gillen, of the law and procedure in prosecutions of serious sexual offences in Northern Ireland, taking account of the experience of recent cases.

The issues to be addressed by the review present conflicts between, on the one hand, ensuring that a fair trial takes place and, on the other hand, ensuring that the enshrined principle of freedom of expression and open access to justice are maintained.

Unlike in some other jurisdictions the public are free, subject to certain legal constraints, to attend trials relating to sexual offences in Northern Ireland.

One of the matters under consideration is whether, as is largely the case in the Republic of Ireland, the public should be excluded from such trials or, as in Scotland, excluded when the complainant gives evidence. The review will also consider whether a small jurisdiction such as Northern Ireland presents particular issues in this regard such that the accused in such cases be given anonymity.

In addition to some rather more technical legal aspects in relation to procedure, unsurprisingly, the review will focus upon the extent to which social media affects a fair trial and indeed whether, given the prolific nature of social media, such trials should be dealt with by judge alone without a jury.

In the meantime, what remains clear is that social media and commentary on cases involving sexual offences will remain part of our society and that is unlikely to change. The challenge is for the law and the procedure involving cases of sexual offences in Northern Ireland to meet the issues that such communications pose.

Paul McDonnell is a Belfast-based lawyer and editorial legal counsel for Independent News and Media (NI)

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