Criminal Justice
(Anonymity in Sexual Offence Cases) (Jersey) Law 2002
A LAW to repeal and re-enact the provisions of the Criminal Justice
(Anonymity in Rape Cases) (Jersey) Law 1992 and to make new provision for the
anonymity of victims of sexual offences other than rape
Commencement [see endnotes]
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“complainant”
means a person against whom a sexual offence is alleged to have been committed;
“picture”
includes a likeness, howsoever produced;
“publication”
includes any speech, writing, relevant programme or other communication in
whatever form, which is addressed to the public at large or any section of the
public (and for this purpose every relevant programme shall be taken to be so
addressed) but shall not include an indictment or other document prepared for
use in particular legal proceedings;
“relevant programme”
means a programme included in a programme service, within the meaning of the Broadcasting
Act 1990 of the United Kingdom as that Act from time to time has effect in
Jersey by virtue of any Order in Council;
“sexual offence”
shall be construed in accordance with Article 2.
(2) For
the purposes of this Law –
(a) where
it is alleged that a sexual offence has been committed, the fact that any
person has consented to an act which, on any prosecution for that offence,
would fall to be proved by the prosecution, shall not prevent that person from
being regarded as a person against whom the alleged offence was committed; and
(b) where
a person is accused of an offence of incest or sodomy, the other party to the
act in question shall be taken to be a person against whom the offence was
committed even though the other party consented to that act.
(3) For
the purposes of this Law, where it is alleged or there is an
accusation –
(a) that
an offence of conspiracy or incitement of another to commit an offence
mentioned in Article 2(a) to (g) has been committed; or
(b) that
an offence of aiding, abetting, counselling or procuring the commission of an
offence of incitement of another to commit an offence mentioned in Article 2(a)
to (g) has been committed,
the person against whom
the substantive offence is alleged to have been intended to be committed shall
be regarded as the person against whom the conspiracy or incitement is alleged
to have been committed.
(4) In
paragraph (3), the “substantive offence” means the offence to
which the alleged conspiracy or incitement related.
(5) For
the purposes of this Law, a person is accused of an offence if –
(a) the
person is presented before the Magistrate’s Court by a Centenier having
jurisdiction in the matter; or
(b) the
person is brought before or committed for trial before the Royal Court on a
charge for the offence,
and references in this Law
to an accusation alleging an offence shall be construed accordingly.[1]
2 Sexual offences
For the purposes of this
Law, “sexual offence” means any of the following –
(a) an
offence under the Sexual
Offences (Jersey) Law 2018, or under a provision of an enactment or
customary law repealed or abolished by that Law (if the offence is alleged to
have been committed before that repeal or abolition);
(b) a
customary law offence of indecent assault or indecent exposure;
(c) an
offence under Article 2 of the Protection
of Children (Jersey) Law 1994;
(d) an
offence under Article 38 of the Mental Health (Jersey) Law 1969 (if the
offence is alleged to have been committed before the repeal of that Law);
(e)
(f)
(g) any
offence under any of Articles 74 to 76 of the Mental
Health (Jersey) Law 2016;
(h) any
offence of attempt to commit any of the offences in sub-paragraphs (a) to
(g);
(i) any
offence of conspiracy or incitement to commit any of the offences in sub-paragraphs (a)
to (g);
(j) any
offence of aiding, abetting, counselling or procuring any of the offences in sub-paragraphs (a)
to (i).[2]
3 Anonymity of victim of sexual offence
(1) Where
an allegation has been made that a sexual offence has been committed against a
person, no matter relating to that person shall during that person’s
lifetime be included in any publication if it is likely to lead members of the
public to identify that person as the complainant.
(2) Where
a person is accused of a sexual offence, no matter likely to lead members of
the public to identify a person as the complainant shall, during the
complainant’s lifetime be included in any publication.
(3) This
Article –
(a) shall
not apply in relation to a person by virtue of paragraph (1) at any time
after a person has been accused of the offence; and
(b) in
its application in relation to a person by virtue of paragraph (2), has
effect subject to any direction given under Article 4.
(4) The
matters relating to a person in relation to which the restrictions imposed by paragraph (1)
or (2) apply (if their inclusion in any publication is likely to have the
result mentioned in that paragraph) include in particular –
(a) the
person’s name;
(b) the
person’s address;
(c) the
identity of any school or other educational establishment attended by the
person;
(d) the
identity of any place of work of the person; and
(e) any
still or moving picture of the person.
(5) Nothing
in this Article prohibits the inclusion in a publication of matter consisting
only of a report of criminal proceedings other than proceedings at, or intended
to lead to, or an appeal arising out of, a trial at which the accused is
charged with a sexual offence
4 Direction disapplying Article 3
(1) If,
before the commencement of a trial at which a person is charged with a sexual
offence, the person or another person against whom the complainant may be
expected to give evidence at the trial applies to the Royal Court for a
direction under this paragraph and satisfies the Royal Court –
(a) that
the direction is required for the purpose of inducing persons to come forward
who are likely to be needed as witnesses at the trial; and
(b) that
the conduct of the applicant’s defence at the trial is likely to be
substantially prejudiced if the direction is not given,
the Royal Court shall
direct that Article 3 shall not, by virtue of the accusation alleging the
said offence, apply in relation to the complainant.
(2) If,
at a trial, the Royal Court is satisfied that the effect of Article 3 is
to impose a substantial and unreasonable restriction upon the reporting of
proceedings at the trial and that it is in the public interest to remove or
relax the restriction, it shall direct that Article 3 shall not apply to
such matter as is specified in the direction.
(3) A
direction shall not be given under paragraph (2) by reason only of the
outcome of the trial.
(4) If
a person who has been convicted of a sexual offence and has given notice of
appeal against the conviction, or notice of an application for leave so to
appeal, applies to the court to which the appeal is or would be made for a
direction under this paragraph and satisfies that court –
(a) that
the direction is required for the purpose of obtaining evidence in support of
the appeal; and
(b) that
the applicant is likely to suffer substantial injustice if the direction is not
given,
that court shall direct
that Article 3 shall not, by virtue of an accusation which alleges a
sexual offence and is specified in the direction, apply in relation to a
complainant so specified.
(5) A
direction given under this Article shall not affect the operation of Article 3
at any time before the direction is given.
(6) If,
after the commencement of a trial at which a person is charged with a sexual
offence, a new trial of the person for the offence in question is ordered, the
commencement of any previous trial shall be disregarded for the purposes of paragraph (1).
5 Special rules for cases of incest[3]
(1) Article 3
shall not apply to a person against whom an offence under Article 34 of
the Sexual
Offences (Jersey) Law 2018 is alleged to have been committed, if
that person is accused of having committed an offence under that Article
against the other person who is alleged to have committed the offence against him
or her.[4]
(2) [5]
(3) Paragraph (1)
shall not affect the operation of this Law in relation to anything done at any
time before the person mentioned first in that paragraph is accused.[6]
(4) In
this Article, a reference to an offence under Article 34 of the Sexual
Offences (Jersey) Law 2018 includes a customary law offence of
incest (if alleged to have been committed before the abolition of that offence),
and an attempt to commit either of those offences.[7]
6 Offences
(1) If
any matter is included in a publication in contravention of Article 3, the
following persons shall be guilty of an offence and liable to a
fine –
(a) where
the publication is a newspaper or periodical, any proprietor, any editor and
any publisher of the newspaper or periodical;
(b) where
the publication is a relevant programme –
(i) any body
corporate or limited liability partnership engaged in providing the programme
service in which the programme is included, and
(ii) any
person having functions in relation to the programme corresponding to those of
an editor of a newspaper;
(c) in
the case of any other publication, any person publishing it.
(2) Where
a person is charged with an offence under this Article in respect of the
inclusion of any matter in a publication, it shall be a defence, subject to paragraph (3),
to prove that the publication in which the matter appeared was one in respect
of which the person against whom the sexual offence is alleged to have been
committed had given written consent to the appearance of matter of that
description.
(3) Written
consent is not a defence if it is proved that any person interfered
unreasonably with the peace or comfort of the person giving the consent, with
intent to obtain consent or that the person was under the age of 16 at the
time when it was given.
(4) Where
a person is charged with an offence under this Article, it shall be a defence
to prove that, at the time of the alleged offence, the person was not aware and
neither suspected nor had reason to suspect, that the publication included the
matter in question.
(5) Where –
(a) a
person is charged with an offence under this Article; and
(b) the
offence relates to the inclusion of any matter in a publication in
contravention of Article 3(1),
it shall be a defence to
prove that at the time of the alleged offence the person was not aware, and
neither suspected nor had reason to suspect, that the allegation in question
had been made.
(6) Proceedings
for an offence under this Article shall not be instituted except by or with the
consent of the Attorney General.
7 Offences by bodies corporate, etc.
(1) Where
an offence under Article 6 committed by a limited liability partnership or
company is proved to have been committed with the consent or connivance of, or
to be attributable to any neglect on the part of –
(a) a
person who is a partner of the partnership, or director, manager, secretary or
other similar officer of the company; or
(b) any
person purporting to act in any such capacity,
the person shall also be
guilty of the offence and liable in the same manner as the partnership or
company to the penalty provided for that offence.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to the acts and defaults of a member in connection with
the member’s functions of management as if the member were a director of
the body corporate.
8 Prohibitions, etc. in other enactments
Nothing in this Law shall
affect any prohibition or restriction imposed by virtue of any other enactment
upon a publication or upon matter included in a relevant programme.
9 Courts-martial
(1) This
Law shall have effect with the modifications set out in paragraph (2) in
any case where, in pursuance of any provision of the Army Act 1955 of the
United Kingdom, the Air Force Act 1955 of the United Kingdom or the Naval
Discipline Act 1957 of the United Kingdom, as those Acts from time to time
have effect in Jersey by virtue of any Order in Council, a person is charged
with a sexual offence.
(2) The
modifications are –
(a) any
reference to a trial shall be read as a reference to a trial by court-martial;
(b) in Article 1(5),
for sub-paragraphs (a) and (b) there shall be substituted the words
“the person is charged, in pursuance of any provision of the Army
Act 1955 of the United Kingdom, the Air Force Act 1955 of the United
Kingdom or the Naval Discipline Act 1957 of the United Kingdom, as those
Acts from time to time have effect in Jersey by virtue of any Order in Council,
with a sexual offence”;
(c) in Article 4(1),
any reference to the Royal Court, in relation to the person charged with a sexual
offence, shall be read as a reference to the judge advocate appointed to
conduct proceedings under that paragraph relating to the offence, whether or
not the judge advocate is also appointed to conduct other preliminary
proceedings relating to the offence; and
(d) in Article 4(2),
any reference to the Royal Court shall be read as a reference to the judge
advocate appointed to be a member of the court-martial.
(3) Where
any provision of an Act referred to in this Article is repealed and re-enacted,
with or without modifications, by a provision of another Act having effect in Jersey,
references in this Article, and in the modifications made by it, to the
provision so repealed and re-enacted shall be construed as references to the
provision so re-enacted, as it has effect in Jersey.
10 Regulations
The States may by
Regulations amend the definitions “publication” and “relevant
programme” in Article 1(1).
11 Citation
This Law may be cited as
the Criminal Justice (Anonymity in Sexual Offence Cases) (Jersey) Law 2002.