Abstract
A move to introduce anonymity for those accused of sexual offences could have profound consequences for investigative journalism
A decade ago, I took a call in The Times newsroom from a man who, after years of personal turmoil, had decided he wanted to tell the story of how he was groomed and sexually abused by a senior Anglican cleric. He had been in touch with another victim who had been targeted after the Church of England moved the cleric, the Very Rev Robert Waddington, to run a school in Australia in the 1970s.
Working with journalists from The Australian, I pieced together the shocking story of how Waddington had spent his long career in the church preying on young boys. When he returned to England, Waddington rose up the Anglican hierarchy. He was head of the general synod’s board of education, became dean of Carlisle Cathedral and ended his career as dean of Manchester Cathedral.
Senior figures in the church were made aware of allegations against Waddington in 1999 and again in 2003. His permission to officiate at services was revoked but no report was made to either welfare authorities or the police because he had cancer and was deemed too frail. In fact, in retirement and living in York, Waddington persisted in trying to spend time with choirboys at York Minster. He died in 2007 without ever facing justice.
I later established there had been a report to Greater Manchester Police, but not from the Church. The force expressed concern that the Church authorities had not disclosed what they knew while Waddington was alive. Lord Sentamu, then Archbishop of York, ordered an inquiry into the affair, which led to his predecessor, Lord Hope, being censured for not taking firmer action against Waddington. The inquiry also led to the Church overhauling its safeguarding policies and practices. Years later, the independent inquiry into child sexual abuse (IICSA) examined the Waddington case as one of its examples of how the Church of England had failed to tackle abusive clerics.
In my 30-year career in national newspapers, the Waddington case is one of those stories that has always stayed with me. The courage of the British victim in telling his story and his gratitude that The Times believed him have had a lasting impact. For me, this was a tangible example of journalism acting in the public interest, doing good.
Yet publishing this story would be almost impossible if privacy campaigners get their way and extend an extraordinary piece of legislation that came into effect in Northern Ireland last year to the rest of the United Kingdom. The Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) makes wide-ranging provisions in the anonymity rights of sexual assault complainants, victims and suspects. In addition to existing anonymity rights for victims and complainants, measures banning members of the public from attending Crown Court trials in sexual offences cases have been introduced. There is an exemption for “bona fide representatives of the press” to be present in court.
The provision that is most alarming for journalists, however, is the extension of anonymity rights to suspected sex offenders. It is now a criminal offence in Northern Ireland to report the identity of anyone under investigation for a sexual offence.
That anonymity right falls away if the suspect is charged. However, if they are not charged, then their legal right to anonymity remains for life and exists for a further 25 years after their death.
If this law were to be extended to the rest of the country – and there are campaigners actively seeking to do that – it would be a criminal offence to report the Robert Waddington story until 2032. That offence would be punishable by up to six months’ imprisonment.
Publication of a suspect’s name becomes a criminal offence if the individual in question has been reported to police or if police “have taken any step to investigate” whether the person has committed a sexual offence. At a time when police routinely refuse to discuss ongoing investigations (“we won’t be giving a running commentary”), quite how the media know if and when they’ve broken the law is another matter.
This legislation has wide-ranging implications for anyone in the media seeking to report on non-recent sexual abuse allegations. The most glaring example is, of course, that of Jimmy Savile, one of the most shocking abuse cases ever uncovered. The revelations about Savile not only exposed the enormous scale of his offending but raised huge questions about how he was able to evade justice during his lifetime. There were major issues for BBC executives, challenges for the police forces that received allegations and failed to act, and questions over the role of the legal profession in protecting the predator, not forgetting the part played (unwittingly) by the friends in high places whom Savile cultivated so successfully.
The extensive reporting of the Savile case was of great importance for society, yet reporting the allegation that he was a sex offender would be made illegal if the Northern Ireland law is extended and might already be a crime in the province.
The roots of this legislation lie in the trial in 2018 of two Ulster rugby players who were tried for the alleged rape of the same woman two years before. Two other players were accused of less serious offences. The case was widely reported across Ireland and became the topic of extensive public discussion. The complainant’s name was leaked on social media, where prejudicial commentary on the case was rife.
A bad case leads to a worse law
The public gallery was busy almost every day of the nine-week trial in Belfast. The young woman spent eight days in the witness box being cross-examined by defence barristers. Her bloodied underwear was passed to the jury for inspection. The defendants denied all the charges, saying the sexual activity that occurred was consensual. The jury acquitted them after a short deliberation.
The “rugby rape trial”, as it became known, led directly to a review of the province’s laws and procedures on sexual offences by a senior retired judge, Sir John Gillen. He made more than 200 recommendations, which formed the basis for the new law brought forward by Northern Ireland’s then-justice minister, Naomi Long of the Alliance Party. Gillen’s recommendations did not, however, include the prohibition on naming sex crime suspects for a quarter of a century after their deaths. It remains unclear where this proposal came from and quite how it ended up in the legislation.
The steady advance of privacy law (which has largely been formed bit by bit by judges, rather than lawmakers) has, in my view, become the biggest threat to the freedom of the press. As Geoffrey Robertson KC argues in his recent book Lawfare, privacy actions are “an excellent vehicle for lawfare because they cover up truth, whereas defamation claims focus on statements alleged to be untrue”.
Since 2018, I have been involved in two major privacy battles in the courts. One was against Arkady Rotenberg, a close friend of Vladimir Putin, who was trying to keep his financial affairs in the UK secret. The other was against a multimillionaire British businessman who succeeded in keeping his identity secret after paying damages to two former employees who alleged sexual assault.
This creeping privacy law impinges on the basic ability of reporters to report on what happens in the criminal justice system and erodes the age-old principle of open justice. The media, however, has to accept it has played a part in creating the climate that has led to the steady growth of privacy laws. In the wake of the Savile affair, there was frenzied reporting of historic abuse allegations against famous names. The charge was led by the now-defunct and unlamented website Exaro News, which published a slew of wild claims and conspiracy theories about VIP abuse rings and establishment cover-ups.
Some newspapers followed in Exaro’s wake and the BBC erred hugely by giving prominence on the main news in late 2014 to the claims of a man known as “Nick” who was the website’s primary source. “Nick” was later revealed to be Carl Beech, who is now in jail having been convicted of deliberately falsifying allegations against former MP Harvey Proctor and the late Field Marshal Lord Bramall, among others.
Promoting “Nick” was just one of the BBC’s blunders in reporting high profile sex abuse allegations. It had also reported false claims against former Conservative Party treasurer Lord McAlpine, then sent camera crews and a helicopter to film a police search of the home of Sir Cliff Richard in 2014. Sir Cliff was never charged with any offence and successfully sued the BBC, winning £210,000 in damages and reaching a settlement in which the corporation agreed to pay £2million towards his legal costs. The ruling in Sir Cliff’s case bolstered calls for anonymity for people suspected of sex offences, but another judgment took the issue further.
In 2022, the Supreme Court ruled that Bloomberg News was wrong to publish an entirely accurate report that a wealthy US businessman, now only identifiable as ZXC, was under investigation for corruption by a British law enforcement agency. The court concluded that “a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”. The Northern Ireland legislation threatens to take the ZXC ruling to another, worrying, level. It not only criminalises reporting of past cases, but is a major obstacle to investigative journalism.
If the law had existed in the rest of the UK last year, it is hard to see how my colleagues on The Times and The Sunday Times, knowing they were reporting on alleged criminality, could have covered the serious allegations against the comedian and actor Russell Brand. That journalism was years in the making and was only possible because of the bravery of several women who came forward to speak to reporters. The publication of the allegations in the press – in collaboration with Dispatches on Channel 4 – triggered a police investigation that has led to Brand (who denies all the allegations) being interviewed.
A new law with unintended consequences
What are newspapers supposed to do under the provisions of the Northern Ireland law once that inquiry begins? Are they meant to erase recent history by taking stories off their websites? And it is not only journalism that would be affected by any extension of this law. I mentioned the IICSA before. That lengthy public inquiry examined scores of cases of suspected sexual abuse, naming many individuals – including MPs, priests and social workers – against whom allegations had been made but were never proven. The inquiry would not have been able to do that in a public setting if this legislation was in force; the transparency that defines a public inquiry would have to be sacrificed.
The laws protecting the identities of sexual assault victims were intended not just to protect victims from distress but to encourage more victims to come forward. A law that protects the identities of suspected offenders for decades after their deaths will surely discourage complainants – such as the man who contacted me about Robert Waddington – from speaking out. At a time when police and prosecutors are struggling to command the confidence of rape and sexual assault victims, it is hard to believe anyone could envisage a law that would create such a deterrent.
One argument for this legislation is that it protects those who have been falsely accused from media and public denigration. But the law does not prevent false accusations being made and pursued by the police. Indeed, anonymity provisions allow the police to arrest people free from scrutiny and increase the prospect of bad policing going undetected.
It must be remembered that the press – especially through the persistence of Stephen Wright at the Daily Mail – played a major part in exposing the false allegations against Proctor, Bramall and others whose reputations were trashed by the Metropolitan Police’s Operation Midland.
The Times, the BBC, The Guardian, Associated Newspapers and others are pursuing a judicial review of this new legislation in the High Court in Belfast. They will argue the law is in breach of the article 10 rights of freedom of expression. Further, they will point out that Northern Ireland’s justice department did not consult any media organisation, and the assembly was therefore “not put in an informed position to enable it to weigh media organisations’ rights under article 10 in the balance”.
My view is that this legislation is both an affront to the principle of open justice and an assault on public-interest journalism. Naomi Long’s Alliance Party has signalled it is “open to reviewing the impact and any concerns about unintended consequences” of the new law. Other parties have made similar noises. Now the Stormont Assembly is sitting again, that review should take place immediately and be swiftly followed by repeal.
