For those who find themselves the unfortunate victims of blackmail, often in cases which concern sexually explicit information (‘sextortion’), the choice of how to respond can be extraordinarily difficult. As discussed in our earlier blog, one of the possible responses is to report the matter to the police, which may then result in a subsequent prosecution of the blackmailer.
What concerns will you have?
When reporting an allegation of blackmail, the victim will no doubt be worried that their identity will be unprotected and may come out at court if the allegation proceeds to a prosecution. The victim’s fear of the embarrassing details of their impropriety being disclosed is the very basis on which the blackmail is able to succeed in the first place. If their identity is not protected in criminal proceedings, the blackmailer’s threat becomes a reality.
Is anonymity automatic in these cases?
The unfortunate news for victims is that anonymity and other forms of identity protection are not automatic in blackmail cases. Applications must be made at court and the decision as to whether to grant them will be in the judge’s hands. Such applications may well be fiercely opposed by the defendant’s legal representatives.
The Crown Prosecution Service (CPS) places great emphasis on protecting victims and witnesses. Its ‘Prosecutors’ Pledge’ promises to ‘address the specific needs of a victim and where justified seek to protect their identity by making an appropriate application to the court.’ Such protection, however, is only to be sought ‘in exceptional circumstances’. The exceptionality of this approach is an acknowledgement of the fundamental importance of open justice and that prosecution witnesses are to be identifiable not only to the defendant, but also to the public, as set out in the CPS’ Guidance on Witness Protection and Anonymity.
What can be done to protect your identity?
One option open to the prosecution is to apply for reporting restrictions under section 46 of the Youth Justice and Criminal Evidence Act 1999. If put in place, these restrictions prohibit any matter relating to the victim from being included in any publication during their lifetime if it is likely to lead members of the public to identify that person as being a witness in the proceedings. This ensures protection for the blackmail victim as far as press reporting is concerned, but it is not the same as anonymity. Section 46 reporting restrictions do not stop a member of the public from sitting in court during proceedings and hearing the name of the victim and the details of the case.
To address this issue, the prosecution may decide to apply to the trial judge to allow the victim not to have to state their name in open court when giving evidence. This is part of a judge’s common law power to allow for adjustments to the ordinary trial procedure in appropriate cases. The CPS’ guidance notes that in blackmail cases, this has become accepted practice. It logically follows that if a judge makes such a direction, the restriction should apply throughout the whole of the trial process so that all parties and witnesses are prevented from referring to the victim by name.
Coupled with other special measures which a judge can grant, such as giving evidence from behind a screen or via video link from a separate room in the court building (i.e. out of view of the defendant), if the correct orders are applied for then a blackmail victim can be confident that their identity will be adequately protected.
How does the CPS approach this issue in practice?
Whilst the CPS’ policies stress the organisation’s commitment to address the needs of victims and witnesses, our experience is that this is not always reflected in practice in cases of blackmail. Victims may find that insufficient thought has been given to their concerns about identity protection and that the necessary orders are not in place. In such cases, it can be of great assistance to have a lawyer on your side who is able to communicate with the CPS on your behalf, make representations as to the correct orders which should be sought and guide you through the process.