People arrested on suspicion of downloading child pornography from the Internet have started coming before the courts. Some have pleaded guilty and been sentenced; other cases have been adjourned and are awaiting the presentation of further evidence.
In the cases which have reached court so far, an anomaly in the treatment of offenders has emerged. This concerns different attitudes among different judges to the anonymity of the accused.
In most of the cases heard to date, the accused person has been named, even if the case has not yet concluded. However, there have been some instances where the judge has granted a solicitor's request that the accused not be named, in order to protect him and his family from the adverse publicity.
Adverse publicity is undoubtedly attracted by an accusation of involvement in child pornography. However, it was clearly not the intention of the legislature to protect those so accused from publicity, as there is no such provision in the legislation. In the legislation concerning rape and sexual assault, the accused can only be named following conviction, and then only if so doing would not identify the victim.
There have been cases where the victim has given up her or his right to anonymity so that the perpetrator of a sexual assault can be named. However, even here there have been instances where this has not led to him being named, as the judge in the case acceded to the request of his lawyers for consideration for the perpetrator's family, though this was not provided for in the legislation.
In child pornography cases, the victims are usually from the Far East or the former Soviet Union. There is no direct relationship between them and the purchaser of the material. Identifying the perpetrator will not lead to them being identified. Indeed, their identification is desirable in order to protect them from further abuse and punish the abusers.
There is no argument, therefore, for not naming those before the courts on such charges. This is especially so when they are convicted.
Some judges may be swayed by arguments about the impact of such identification on the families of the accused. This is understandable. But under our Constitution, justice must be administered in public, and part of that is that the public sees that justice is done to individual transgressors, whoever they may be. If the judiciary permits inconsistency in this area, it risks undermining public confidence in the criminal justice system.