Accused of a Sexual Offence: Will My Case Be Made Public?

A principle concern for many people accused of a sexual offence is the potential for it to be publicised in the news or on social media. At Eventum Legal we understand the anxiety and distress the prospect of this can cause and work closely with our clients to protect their right to privacy and a fair trial as much as we possibly can.

The main concern for publicity of police investigations or court proceedings arises in cases of sexual offences against children such as; indecent images of children, sexual communications with a child, and more serious offences such as sexual activity with a child and rape. The stigma that even being accused of a sexual offence against a child carries can have devastating consequences on the accused, even if they are not charged or convicted of the alleged offence, the damage to their life can be irreparable.

The Rights of the Press in Criminal Cases

There are two main stages to a criminal case; pre charge which is where a person is under police investigation, and post charge where a suspect has been charged and court proceedings have begun. The rights of the press differ at each stage and consideration to the accused’s right to privacy must be given.

Police Investigation (Pre-Charge)

There is general expectation that a person going through a police investigation has a right to privacy, and their involvement in the commission of a criminal offence will not be published. This was affirmed in the case of Bloomberg LP v ZXC [2022] UKSC 5. However, there is a two stage test to be considered:

Stage 1: Whether the accused has a reasonable expectation of privacy in the relevant information.

When answering the question of stage 1 an objective approach is to be applied, and all the circumstances of the alleged offending and the suspect are to be considered, for example; the effect on the accused if it were to be published, the location of the offence, the nature of the offence and the personal circumstances of the accused.

The effect on the accused must attain a sufficient level of seriousness for Article 8 European Convention on Human Rights (‘ECHR’) (the right to respect for private and family life) to be engaged. When considering the accused’s rights at this stage of a case it is always important to consider the Article 8 right to those who would be affected by publication such as children, spouses and partners, and parents.

Stage 2: If so, whether that expectation is outweighed by the countervailing interest of the publisher’s right to freedom of expression.

When applying stage two there has to be a consideration of the accused’s right to privacy enshrined by Article 8 ECHR and the authors rights to freedom of expression enshrined in law by way of Article 10 ECHR. There is no one right that takes precedent and a balancing act is to be applied taking into consideration various factors.

An intense focus on the comparative importance of the specific rights being claimed in the individual case;
The justifications for interfering with or restricting each right; and
The proportionality of the interference or restriction.

The extent to which publication is in the public interest is of central importance, as well as the contribution that publication will make to a debate of general interest. Other relevant factors are:

How well-known the person concerned is and what is the subject of the report;
The prior conduct of the person concerned;
The method of obtaining the information and its veracity;
The content, form and consequences of publication; and
The severity of the restriction or interference and its proportionality with the exercise of freedom of expression.

Court Proceedings (Post Charge)

When a person is charged with a child sexual offence the position in relation to their right to privacy rightly or wrongly changes. By this stage a long process has usually been undertaken with evidence collated and considered by a legally trained prosecution lawyer at the Crown Prosecution Service (CPS). Where the decision to charge has been made the charging standard has been applied and met suggesting that there is enough evidence for there to be a reasonable prospect of a conviction, rather than there just being an allegation made.

Guidance to reporting restrictions in the criminal courts was published in 2023 to legal professionals which aimed to give a structured approach to magistrates and judges. The report places emphasis on a central principle of criminal justice that the court sits in public so that the proceedings can be observed by members of the public and reported on by the media. Transparency improves the quality of justice, enhances public understanding of the process, and bolsters public confidence in the justice system. Media reporting is critical to all these public interest functions.

Therefore, unless there are exceptional circumstances laid down by law then the courts should not depart from ensuring the principles of open justice is served.

Can I Prevent Publication of My Case? – The Exceptions

In accordance with the open justice principle, the general rule is that all court proceedings must be held in open court to which the public and the media have access. The common law attaches a very high degree of importance to the hearing of cases in open court and under Article 6 ECHR the right to a public hearing and to public pronouncement of judgment are protected as part of a defendant’s right to a fair trial. Therefore, there are many benefits to a defendant of having their case heard in open court, particularly when fighting for their innocence and rights.

Trials Held In Private

The courts do have the power to hear proceedings in part or in full in private, but this is a very extreme measure to be taken by any judge, and is only done in exceptional circumstances. The test to be applied is one of necessity; is it necessary for this part of the trial or for this whole trial to be heard in private. The law says that it will not be necessary to exclude part or all of proceedings in the criminal courts due to the embarrassment of a witness, or the reputational harm that could arise to any one involved in proceedings the main reasons many defendant’s in sexual offence cases so desperately want anonymity.

Circumstances which may justify hearing a case in private include situations where the nature of the evidence, if made public, would cause harm to national security e.g. by disclosing sensitive operational techniques or identifying a person whose identity for strong public interest reasons should be protected e.g. an undercover police officer or MI5 employee.

Special Measures

Often the adoption of special measures such as allowing a witness to give evidence from behind a screen, giving their name in a note handed to the judge, or ordering that a witness shall be identified by a pseudonym (such as by a letter of the alphabet) and prohibiting publication of the witness’s true name by an anonymity order under s.11 Contempt of Court Act 1981, will remove any need to exclude the public.

Youth Courts

Section 47 Children and Young Persons Act 1933 is a statutory exception to the open justice principle which generally bars the public from attending Youth Court proceedings. This prohibition does not extend to court members and officers, the parties, their legal representatives and witnesses, or to representatives of the media or to such other persons as the court may specifically authorise to be present.

Sexual Offences

Section 25 Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) permits the court to exclude persons of any description from the court during the evidence of a child or vulnerable adult witness in cases relating to a sexual offence or where there are grounds for believing that a witness has been, or may be, intimidated.

However, it was not envisaged that the media should routinely be excluded alongside the rest of the public, even in such exceptional cases. Even where the media generally are to be excluded, one nominated representative of the media must be permitted to remain.

Complainant Anonymity in Sexual Offence Cases

Complainants of a wide range of sexual offences are given lifetime anonymity under the Sexual Offences (Amendment) Act 1992, this anonymity applies throughout all stages of proceedings and although the press may print details of the trial/offence, they must not print any detail that could lead to the identity of the complainant.

Is a Defendant Entitled to Anonymity in Sexual Offence Cases?

Defendant’s are not granted anonymity in sexual offence cases unless one of the exceptional circumstances applies, and this is very rare. Therefore, the reality is that where a defendant may be embarrassed or worried about the stigma and repercussions of being accused of a serious sexual offence, the court will not in these circumstances grant anonymity.

How Eventum Legal Can Help

At all stages of proceedings we put our clients interests first, this means protecting them from any adverse affects of being accused of a criminal offence, ensuring that where publications are made we proof read the article to ensure it is within the legal requirements that the court have put in place for the case and the article provides a true reflection of the allegations and proceedings. However, our main aim is to ensure firstly that our client is not prosecuted for a criminal offence, and where they have been charged to get the best outcome at court for them.

Our lawyers on many occasions have corrected editors of news articles which concern our clients, challenged articles and taken publications through the courts where there have been breaches of a judges orders in respect of anonymity.

It is important to know that for the number of sexual offence cases that are reported there are many more cases going through the courts in comparison. The chance that a reporting of a case will be made is relatively low, but we understand the extra stress this puts on those accused and therefore provide a high level of care and support to clients to get you through each stage.