October 8: The right to lifelong anonymity for rape complainers should finally be enshrined in Scots law, according to a coalition of legal experts and campaigners.
Despite a broad consensus in favour of complainer anonymity – which is a legal right in England, Wales and Northern Ireland, as well as Australia, Ireland, Canada – there is no general prohibition on identifying sexual offence complainers in Scotland.
Mainstream media convention dictates that complainers – the Scottish legal term for complainants – are not named, and formal restrictions can apply if a special court order is made.
The campaign for complainers’ anonymity is being spearheaded by one of Scotland’s leading law departments, at Glasgow Caledonian University (GCU), previously recognised for its award-winning Law Clinic offering advice to those who do not qualify for legal aid, The Guardian reported.
But, in a new article for Edinburgh Law Review, GCU law lecturer Andrew Tickell argues that, in the wake of the Alex Salmond trial, Scotland’s highest-profile sexual offences prosecution to date, the reliance on “a gentleman’s agreement by the mainstream media” or occasional special court orders is unsustainable.
In March, the former first minister was acquitted of 13 sexual assault charges following a two-week trial. After the trial, the complainers spoke out about an onslaught of online abuse and breaches of their anonymity.
Tickell points out that the law has failed to keep up with technological change, and the way that “ordinary people with thumbs, opinions, 14 Twitter followers, and no sense of restraint” can now pass public comment on active court proceedings.
Describing the current gap in the law as “glaring”, he writes: “Given the critical importance of anonymity to many complainers, it seems remarkable that for more than 40 years, complainer anonymity in Scotland has relied on what amounts to little more than a gentleman’s agreement by the mainstream media not to identify complainers, special orders under the Contempt of Court Act which are rarely made, and on social media users’ decency – or plain misunderstanding of the applicable law.”
Driven by staff and students, the forthcoming GCU campaign is planning comparative work to show how Scotland is out of step with other jurisdictions, polling on public attitudes, as well as a survey of the experience of complainers who have gone through the court system, with the aim of persuading the Holyrood parliament to amend current legislation.
Adding her support to the campaign, the chief executive of Rape Crisis Scotland, Sandy Brindley, said: “Those reporting sexual offences in trials are not named because of convention, but particularly in the age of social media this just isn’t good enough. We often hear from people who are worried about what it will mean and who will find out, sometimes even more so in remote and rural areas or amongst minoritised communities.”
Prof James Chalmers of Glasgow University, whose landmark research on juries in rape trials found that the availability of the unique Scots law verdict of “not proven” might push jurors towards acquittal, called on the Scottish government to fix the anonymity problem.
Chalmers said: “Most people assume that rape complainers have a right to anonymity in Scots law and would be shocked to discover that they don’t. Although the media have a longstanding practice of reporting responsibly and keeping the names of complainers confidential, complainers in Scotland are not automatically protected from individuals who choose to name them on social media, something which has led to prosecutions elsewhere in the UK.”