Sections 33-35 of the Criminal Courts and Justice Act 2015 created the offence of “disclosing private sexual photographs and films with intent to cause distress” in order to provide a mechanism to criminalise the relatively recent phenomenon of “revenge porn.”  This offence came into force on 13 April 2015. 

Given that the purpose of the offence is to prevent the subject of such films or photographs from being caused distress, it is somewhat puzzling that there is no specific statutory provision to allow for anonymity for the Complainant in these cases.

The Offence

The elements of the offence are straightforward.  In order for the offence to bite, it requires:

  • The Disclosure of a private sexual photograph or film;
  • Without the consent of the individual who appears in the photograph or film;
  • With the intention to cause the individual distress.

This offence carries a maximum sentence of two years imprisonment when tried on indictment.  For a more detailed commentary on this offence, please see previous blogs by my colleague, Sandra Paul:

Analysis

It is clear that the mischief of this offence is to have a deterrent effect – to prevent photographs or videos from being uploaded to the internet through fear of prosecution. 

The main justification for the creation for this offence was the belief that prior to the introduction of this offence, it was difficult for prosecutors to find a suitable statutory or common law offence to use in order to criminalise (and therefore, prevent) this behaviour.  As a result, it was argued that complainants who were the subject of the material would have to rely on expensive and uncertain remedies under civil law. 

Yet, the offence that has been created to address the issue of revenge porn is not without its limitations.  The most significant deficiency of this offence is that there is no specific provision that provides anonymity to the Complainant.  This is in stark contrast to some sexual offences which have specific statutory provisions allowing for the anonymity of complainants (see for, example, the protections provided by the Sexual Offences (Amendment) Act 1992). 

On the one hand, it seems obvious that such an offence requires an anonymity provision.  After all, unless the Complainant is provided anonymity, either he or she may be unwilling to make a complaint to the Police, or to be engaged in a prosecution in the knowledge that their name may be in the public domain. 

On the other hand, it is likely that in many cases the name of the Complainant will have been broadcast along with the material in question and as a result, anonymity in such circumstances is arguably otiose.

Yet, given that in a significant number of cases, the name (and identity) of the Complainant will not have been made public, it seems that there is a persuasive reason for there to be a specific anonymity provision for this offence.  Without such a provision, the Police and prosecutors are generally unable to guarantee anonymity and, understandably, complainants may be deterred from making complaints or pursuing prosecutions. 

After all, it would be embarrassing enough for the subjects of the material to have their photographs or videos published – but there is an additional level of embarrassment involved in giving evidence, with the risk that it may be reported in the press. 

The corollary of this situation is that complainants (who have the means to do so) may well choose to rely on civil law provisions, which can provide greater guarantees of anonymity, rather than make a complaint to the police – and this seems to run contrary to the very purpose of this piece of legislation.