In Scotland, complainers in sexual offence cases have no automatic right to anonymity.  The idea that complainers “automatically have a right to anonymity under UK law” is often referred to in Scotland – but it has no foundation in Scots law.

In England and Wales, the Sexual Offences (Amendment) Act of 1992 provides English and Welsh complainants with anonymity.  However, while under this Act the Scottish media cannot identify complainants in English and Welsh sexual offence cases, there is no equivalent provision in relation to complainers in Scottish cases.

While Scottish courts can make orders prohibiting the identification of complainers under section 11 of the Contempt of Court Act 1981, these orders are not automatic and are not sought in the overwhelming majority of cases. This leaves a critical gap in our law. Scottish complainers are exposed to an acute risk of being publicly identified in connection with the case, without any effective legal remedy, enforceable in the courts.

It has been known, in some cases, for the identity of complainers in sexual offence cases to be published in Scotland. For example, in the 2015 case of A Man v The Daily Record, the Daily Record published an article which exposed the name of the complainer in a sexual assault prosecution. As a result, the complainer experienced significant upset and humiliation. His family found out about the case by reading the newspaper. He had been assured by the police, in advance, that he would not be identified by the media. In reality, however, this was not legally correct under current Scots law. A complaint was made to the Independent Press Standards Organisation (IPSO) in relation to breaches of the Editors’ Code. The newspaper at fault was aware of the fact that to reveal the identity of a complainer was not ‘usual practice’ but outlined that there was no Scottish law to prevent them from doing so. On that point, they were entirely correct.  While, ultimately, the IPSO found that the Code had been breached, this example shows that a ‘code of conduct’ for the media is simply not enough in providing protection for complainers.

The reality is that Scotland is out of step with the rest of the UK and, indeed, many other legal systems, on this issue. England and Wales; Northern Ireland; Tasmania and New Zealand all have legislation protecting the right to anonymity. However, as it stands, complainers in Scottish sexual offence cases have no automatic, legally enforceable, right to anonymity.