Preventing the press from naming names is causing confusion and restricting the open reporting and scrutiny of important decisions.
The media have failed in their bid to be allowed to name a 20 year old woman who was given a 2 year jail term for infecting her former partner with HIV. The South Wales Argus failed in its original bid to be allowed to name the woman and a subsequent application submitted by The Times on behalf of the wider media has now been turned down.
The case raises a number of issues regarding the veil of anonymity family courts are able to cast over proceedings. It was also subject to much inaccurate reporting, which may in turn be attributable to the difficulty in obtaining and being allowed to publish certain facts.
The woman was prosecuted under section 20 of the 1861 Offences Against the Person Act for having unlawfully inflicted grievous bodily harm. Reports that she was being tried and subsequently jailed for ‘knowingly’ or ‘deliberately’ infecting her partner are wrong. The law under which she was convicted does not require intent but will penalise recklessness. She took a risk having mistakenly assumed it to be difficult to transmit HIV to a man and not wanting to lose him.
The first issue that arises is the relevant law applied in this case. She was not charged under sexual offences legislation but under old established criminal law. While some countries have specific laws relating to passing on HIV, the UK treats this as a variation of the standard GBH offence. She is the sixth person and first woman in the UK to be prosecuted for having transmitted HIV.
Earlier this year two men failed to have their sentences of 4.5 and 10 years for recklessly infecting a woman with HIV overturned on appeal. The law being developed in such cases appears to be placing a duty on those who are HIV positive to disclose this to their sexual partners.
According to a report carried out for GNP+ and the Terrence Higgins Trust, there have been around 130 prosecutions across Europe for such offences. These cases are causing concern amongst campaigners that such prosecutions could stigmatise those with HIV and, in certain circumstances, conflict with human rights laws. This was reflected in a Home Office report in 2000 that indicated the Government was not keen to specifically criminalise sexual transmission of HIV.
So we are dealing with a sensitive and potentially controversial issue that requires public debate and scrutiny.
The second important issue that arises from this is the rationale for restricting media coverage by preventing identification of the woman convicted.
Some reports suggest that an order relating to care proceedings involving her children extends anonymity to her. Others state that the restriction is to protect the identity of the victim.
So why are the media being restricted.
The suggestion that the ban is to protect the victim is somewhat bizarre (unless one or more children were his and the order therefore extended to prevent his identification leading to theirs). If the case had been treated as a sexual offence, then consistent with other offences such as rape, he would be entitled to anonymity. If they were both juveniles then restrictions could be applied on identifying the victim, witnesses or ‘vulnerable people’. However the case was a criminal one of GBH to which such restrictions would not normally apply.
In relation to children, the family courts have the power to restrict reporting and prevent identification of not just children but also adults in relation to care proceedings.
The rationale is to protect children from unwanted attention or publicity that could affect their welfare or upbringing. The problem with the powers the family courts have and which were used in refusing the application to name the woman, is that range of powers the courts have under various legislation, are far-reaching and overused.
Whether in care proceedings, or as in this case, wishing to identify someone who has been convicted of an offence and locked up in jail, the veil of anonymity the courts can cast over proceedings prevents proper scrutiny and reporting. While it is vital to protect the welfare and interests of children, maintaining their anonymity does not, in every case, have to extend to restrictions over reporting large parts of the proceedings or the adults involved.
Given the widespread publicity surrounding this case and the fact she is well known locally, it is hard to see how naming the woman would directly identify and put at risk the children in this case.
It is regrettable that the media are again being prevented from being able to fully report on a case that requires further debate.
Home Office Consultation Paper
GNP+ / THT Report