Victims, Witnesses, and Justice Reform (Scotland) Act 2025

Prospective

104 Sexual offences cases: anonymity and restriction on publications S

(1) The Criminal Justice (Scotland) Act 2016 is amended as follows.

(2) After section 106, insert—

“Chapter 2B S Anonymity for victims

Restriction on publications relating to listed offences S

106A Restriction on publications relating to listed offences

(1) Subject to sections 106B and 106C, no publication is to include information relating to a person if that information is likely to lead to the identification of the person as being a victim of an offence listed in subsection (5).

(2) For the purposes of subsection (1), information relating to a person includes 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 at which the person works,

(e) any still or moving picture of the person.

(3) The restriction imposed by subsection (1)—

(a) applies during the lifetime of the person to whom the information relates, and

(b) ceases to apply on that person’s death.

(4) The restriction imposed by subsection (1) does not prevent the person to whom the information relates from publishing information which is likely to lead to their own identification as being a victim of an offence listed in subsection (5).

(5) The offences referred to in subsection (1) are—

(a) an offence under section 52 or 52A of the Civic Government (Scotland) Act 1982 (offences involving indecent photographs of children),

(b) an offence to which section 288C of the Criminal Procedure (Scotland) Act 1995 applies (certain sexual offences),

(c) an offence under section 1 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (offence of female genital mutilation),

(d) an offence under section 1, 9, 10, 11 or 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (certain sexual offences against or in respect of children),

(e) an offence under section 122 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage or forced civil partnership),

(f) an offence under section 1 (human trafficking) or section 4 (slavery, servitude and forced or compulsory labour) of the Human Trafficking and Exploitation (Scotland) Act 2015,

(g) an offence under section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (disclosing, or threatening to disclose, an intimate photograph or film),

(h) an offence under section 140, 141, 142, 152, 153 or 154 of the Health and Care Act 2022 (offences relating to virginity testing and hymenoplasty),

(i) attempting to commit any offence mentioned in paragraphs (a) to (h) (but not paragraph (b)),

(j) conspiracy or incitement to commit any offence mentioned in paragraphs (a) to (h),

(k) aiding, abetting, counselling or procuring the commission of any offence mentioned in paragraphs (a) to (h).

(6) The Scottish Ministers may, by regulations, modify subsection (5) by adding an offence to, varying the description of an offence mentioned in, or removing an offence from, that subsection.

(7) Regulations under subsection (6) are subject to the affirmative procedure.

(8) In this section—

• “offence” includes any offence, regardless of whether it is committed, or suspected to have been committed, before or after this section comes into force,

• “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed or accessible to the public at large or any section of the public (whether on registration, payment, subscription or otherwise),

• “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990,

• “victim of an offence” means a person against or in respect of whom an offence has been, or is or has been suspected to have been, committed.

106B Power to dispense with restriction: child victims

(1) A sheriff may by order dispense with the restriction imposed by section 106A(1) where—

(a) the information to which the restriction would apply is information relating to a child, and

(b) the sheriff considers that the conditions set out in subsection (4)(a) and (b) are satisfied.

(2) A sheriff may make an order under subsection (1) on the application of a person other than the child who wishes to publish information relating to the child.

(3) Before deciding whether to make an order under subsection (1), the sheriff must give the following persons an opportunity to make representations—

(a) the person who made the application,

(b) the child to whom the information relates.

(4) The conditions referred to in subsection (1)(b) are that—

(a) the child to whom the information relates—

(i) understands the nature of an order under subsection (1),

(ii) appreciates what the effect of making such an order would be, and

(iii) gives consent to the publication of the information, and

(b) there is no good reason why an order under subsection (1) should not be made.

(5) The child to whom the order under subsection (1) relates may withdraw consent by giving, before the information is published, written notice to the person who obtained the order.

(6) Where a child gives notice under subsection (5), the restriction imposed by section 106A(1) is, from the time the notice is received, no longer dispensed with.

(7) The decision of the sheriff under this section is final.

(8) In this section—

• “child” means a person who is aged under 18 at the date on which the application is made,

• “consent” means free agreement.

106C Power to dispense with restriction: conviction for relevant offence

(1) This section applies where—

(a) a court convicts a person of a relevant offence, and

(b) there is information relating to that person the publication of which is restricted by section 106A(1).

(2) The court may, of its own accord, make an order dispensing with the restriction imposed by section 106A(1) if—

(a) the court is satisfied that—

(i) the person convicted of a relevant offence alleged that they were a victim of an offence listed in section 106A(5), and

(ii) there is a connection between the conduct amounting to the relevant offence and the allegation that the person was a victim of an offence listed in section 106A(5), and

(b) the court is satisfied that it is in the interests of justice to dispense with the restriction.

(3) In this section—

• “relevant offence” means—

  (a)

  an offence of perjury,

  (b)

  an offence of attempting to pervert the course of justice,

  (c)

  an offence under section 44 of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations),

• “victim of an offence” has the same meaning as in section 106A.

106D Offence and defences

(1) A person who publishes relevant information in contravention of section 106A commits an offence and is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

(2) A person who—

(a) attempts or conspires to commit an offence under subsection (1), or

(b) aids, abets, counsels, procures or incites the commission of such an offence,

commits an offence and is liable on conviction to the same punishment as if the person had committed the offence under subsection (1).

(3) A person charged with an offence under this section has a defence if it is established that the conditions mentioned in subsection (4) were met.

(4) Those conditions are that—

(a) the person to whom the relevant information relates—

(i) had given written consent to the publication of information in relation to an offence listed in section 106A(5),

(ii) was aged 18 or over when that consent was given, and

(iii) had not, before the information was published, given written notice of the withdrawal of that consent, and

(b) the information published relates to the offence to which that consent relates.

(5) A person charged with an offence under this section has a defence if it is established that—

(a) the information published was in the public domain (having already been published by the person, being a person aged 18 or over, to whom the information relates or otherwise), and

(b) where the information was in the public domain as a result of it being published by a person other than the person to whom it relates, there was no reason for the person charged to believe that the conditions mentioned in subsection (4) were not met in relation to that prior publication.

(6) A person charged with an offence under this section has a defence if it is established that they were not aware, and neither suspected nor had reason to suspect, that the publication included relevant information.

(7) For the purposes of subsections (3), (5) and (6), a matter is established if—

(a) evidence adduced is enough to raise an issue as to whether that is the case, and

(b) the prosecution does not prove beyond reasonable doubt that it is not the case.

(8) For the purposes of subsections (3), (4)(a)(ii) and (5)(a), that a person was aged 18 or over is established only if the person charged with the offence took reasonable steps to establish the person’s age.

(9) For the purposes of subsection (4)(a), consent which purports to be specific to a particular publication may be taken to be consent to publication generally.

(10) For the purposes of subsections (3) to (6), where a person is charged with an offence by virtue of subsection (2), references to the publication of relevant information include references to the attempted publication of that information.

(11) In this section—

• “consent” means free agreement,

• “relevant information” means information the publication of which is restricted under section 106A(1).

106E Individual culpability where organisation commits offence under section 106D

(1) This section applies where—

(a) an offence under section 106D is committed by a relevant organisation, and

(b) the commission of the offence—

(i) involves consent or connivance, or

(ii) is attributable to neglect,

on the part of a responsible individual.

(2) The responsible individual (as well as the relevant organisation) commits the offence.

(3) For the purposes of this section—

(a) “relevant organisation” means an organisation listed in the first column of the table in subsection (4),

(b) “responsible individual” means, in relation to a relevant organisation—

(i) an individual falling within the corresponding entry in the second column of that table, or

(ii) an individual purporting to act in the capacity of an individual falling within the corresponding entry.

(4) The table is as follows—

Relevant organisation	Responsible individual
a company as mentioned in section 1 of the Companies Act 2006	a director, manager, secretary or other similar officer
	a member, where the company’s affairs are managed by its members
a limited liability partnership	a member
a partnership other than a limited liability partnership	a partner
any other body or association	an individual who is concerned in the management or control of the body’s or association’s affairs

106F Crown application: offence under section 106D

(1) Nothing in section 106D makes the Crown criminally liable.

(2) The Court of Session may, on an application by the Lord Advocate, declare unlawful any act or omission for which the Crown would be criminally liable if it were not for subsection (1).

(3) Subsection (1) does not affect the criminal liability of persons in the service of the Crown.”.

(3) The 1995 Act is amended as follows.

(4) In section 47 (restriction on report of proceedings involving children)—

(a) in subsection (1), after “below” insert “and to section 47A”,

(b) in subsection (2), after “below” insert “and to section 47A”.

(5) After that section insert—

“47A Disapplication of section 47 in certain cases

(1) This section applies where—

(a) proceedings are taken against any person in respect of an offence listed in section 106A(5) of the Criminal Justice (Scotland) Act 2016 (a “listed offence”), and

(b) the person who is the victim of the offence is aged under 18.

(2) Section 47—

(a) does not apply in relation to the person who is the victim of the listed offence in respect of that offence,

(b) otherwise continues to apply in respect of the proceedings.

(3) In this section, “offence” and “victim of the offence” are to be construed in accordance with section 106A(8) of the 2016 Act.”.

Commencement Information

I1 S. 104 not in force at Royal Assent, see s. 116(2)