Introduction and Facts
The law relating to anonymity of those who are victims of sexual offences is clear – they have lifelong anonymity. There are plenty of examples of this being broken, but this is normally by individuals – plenty of whom are prosecuted.
After a trial in that case, the Sun editor was convicted and faced a total financial penalty (costs and compensation) of £2,300.
The Telegraph published the same picture on 3rd March 2016, the day after Mr Johnson was convicted. They pleaded guilty, and “accepted that the pixelated image was likely to identify” the complainant.
The Telegraph got whacked – they were fined £80,000 and ordered to pay the victim £10,000. In addition to that, there were £1,473 costs and the £120 victim surcharge.
One obvious question is why the amount of money that the Telegraph had to pay was so much more – nearly 40 times the amount, for the same picture. This is especially so as the Sun had a trial, whereas the Telegraph pleaded guilty (and so would normally expect a lower penalty).
The key to this is the dates that they were published.
After the Sun published the picture, the maximum amount that a Magistrates’ Court could fine somebody increased greatly. For an offence such as this, instead of a maximum fine of £5,000, it is now unlimited.
That explains how a Court could pass that sentence. It still raises the question of whether it should have done.
Although the sum of £5,000 was probably too small a maximum, at least for corporate defendants, the fine here is huge. This is especially so when set against a backdrop of an immediate apology, the fact that there was no intention to identify her, and the facts that steps had been taken to ensure that she was unrecognisable.
We imagine it will be appealed and will be interested to see what is made of it. It is not that far of the sort of sentences you can see for Health and Safety Breaches that lead to the death or very serious injury of an individual. Is this a proportionate sentence?
In terms of the compensation, again although it has to be recognised how much the identification of the victim has impacted on her life, was the compensation set at too high a level here? Especially with regard to the intention of the Telegraph?
To put it in context, it is the same sort of compensation you get for an attack that leaves you with signifiant disfigurement to the face, or the loss of an ear, or two or more fingers.
Hopefully the sentencing remarks will be published to give us some idea of how the financial orders were made.
One matter that we raised previously was whether the photograph was one that should be covered by the legislation. It is a bit confusing, as on the last occasion the Court concluded that the victim could not be identified from the picture, but the Telegraph seems to have accepted that it should be.
There does not appear to have been an appeal against the conviction by the Sun, so it may be that this remains unclear.