Anonymity Until Conviction: The Case for a Mirror Provision in Scotland
Scotland has rightly moved to protect the privacy of complainers. It is now time to provide the same shield for the accused until a verdict is reached, ensuring the presumption of innocence is not undermined by a permanent digital record.
What this article covers
- The Permanent Record: Why modern search engines make naming an accused person a form of pre-trial consequence.
- The Policy Case: Why Scotland should consider mirroring the protections recently granted to complainers.
- The Triple Safeguard: A model for Scottish courts that balances privacy with the principle of open justice.
- Practical Steps: Questions to ask your solicitor regarding reporting restrictions.
The Situation in Scotland
Scotland has recently moved to strengthen privacy for victims of sexual offences through statutory, lifelong anonymity. That reform sits inside the Victims, Witnesses, and Justice Reform (Scotland) Act 2025. The Scottish Government’s policy framing, as outlined in Transforming the justice system for victims and witnesses, focuses on dignity and reducing barriers to reporting. However, for the person accused, the legal framework remains unchanged. In 2026, an accusation, even one that leads to a total acquittal, becomes a permanent digital record. The state currently permits a level of public exposure that can function as a form of punishment before evidence is ever tested in court. This creates a public consequence that a verdict alone cannot fully undo.
The Moral Spine: This proposal does not rest on the claim that complainers lie. It rests on a fundamental legal proposition: The state should not facilitate irreversible harm to a citizen's reputation before guilt is proven.
The presumption of innocence is not only a courtroom instruction to a jury. It is a constitutional ethic that should shape how the state treats citizens before a verdict is reached.
Holyrood’s History: The Unfinished Debate
In March 2002, during Stage 3 of the Sexual Offences (Procedure and Evidence) (Scotland) Bill, MSPs debated a proposal to provide anonymity to those accused of rape. The full record of that debate can be found via TheyWorkForYou. Any credible proposal must also address the serious objections raised by organisations such as Rape Crisis Scotland. Their position is rooted in a legitimate concern for protecting reporting confidence and maintaining the visibility of sexual violence as a social issue, concerns that deserve to be taken seriously in any reform. However, the case for accused anonymity rests on the fact that sexual allegations are uniquely persistent in public memory and social perception, regardless of the eventual verdict.
A Workable Scottish Model: The Triple Safeguard
Open justice protects the public’s ability to scrutinise the courts. This proposal limits identification, not scrutiny. This model does not create secret trials; rather, it preserves the vital principle of open justice while narrowing the automatic publication of identity. A "Mirror Provision" would be based on these three pillars:
- The Default Rule: The accused is not publicly identified until a conviction is recorded. The trial remains open to the press, and proceedings can be reported, only the identity of the accused is withheld.
- Judicial Override: A judge may lift anonymity if there is a concrete necessity, such as a requirement for public safety or a demonstrable need to encourage other relevant witnesses to come forward, as suggested in the 2016 Henriques Report.
- Consistency: Using the same "restriction on publications" framework already deemed workable for victims in the 2025 Act.
Risk Areas in the Current System
- Investigative Shortcuts: Routine naming can function as an investigative shortcut, used to see if further allegations arise, rather than as a targeted necessity of the case.
- Social Persistence: Sexual allegations carry a unique social "stickiness." Protection is a statement about the state’s duty under uncertainty: proof must precede public penalty.
Myths vs Reality
Myth: Anonymity for the accused prevents other victims from coming forward. Reality: Under the Triple Safeguard model, a judge can lift anonymity specifically to facilitate witness appeals if a genuine need is demonstrated. It replaces an automatic shortcut with a reasoned judicial decision. Myth: This would be the only case of "special treatment" in the law. Reality: Scottish law already provides special protections for children and, as of 2025, lifelong protection for complainers. Extending this to the accused ensures the system remains balanced and consistent.
Practical Next Steps
If you are navigating the Scottish criminal justice system, consider these steps (this information is for guidance and does not constitute legal advice):
- Ask your Solicitor about Section 4(2): Ask your solicitor whether a Section 4(2) order under the Contempt of Court Act 1981 is appropriate in your case to prevent a substantial risk of prejudice to the administration of justice.
- Digital Caution: Avoid engaging with allegations or commenting on the case on social media. This can inadvertently waive privacy interests or be used as evidence.
- Question the Necessity: Discuss with your legal team whether the public naming in your specific case meets a genuine "public interest" requirement or if it can be challenged.
Glossary of Terms
- Corroboration: The Scottish rule requiring essential facts of a crime to be supported by evidence from at least two independent sources.
- Open Justice: The principle that court proceedings should be visible and accountable to the public to ensure fairness and transparency.
- Section 4(2) Order: A court order that postpones the reporting of certain parts of a trial to avoid prejudicing the proceedings.
- Not Proven: A unique Scottish verdict which results in an acquittal, meaning the accused is cleared of the charges.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific legal issues regarding a criminal case in Scotland, always consult a qualified solicitor.