303.By virtue of section 106D(1) it is an offence to publish information in breach of the restriction imposed by section 106A(1). By virtue of section 106D(2) it is also an offence to attempt or conspire to do so or to aid, abet, counsel or procure the publication of information in breach of the restriction. These provisions do not apply where the restriction has been dispensed with on the order of the sheriff under section 106B (in the case of a child victim) or where the court has made an order under section 106C.
304.A number of defences are available to a person accused of an offence under this section. Under subsections (3) and (4), a person who publishes information with the written consent of the person to whom the information relates, does not commit the offence provided the person to whom the information relates is 18 years old or over and their consent was not withdrawn before the information was published. The person charged must however have taken reasonable steps to establish that the person to whom the information published relates was over 18. While a child victim could purport to consent to publication, the person publishing would not be able to rely on that as a defence to a charge under subsection (1).
305.Subsection (5) provides a defence where the person charged has published information that was already in the public domain (including where the person to whom the information relates was 18 or over and published the information themselves (as mentioned in section 106A(4)). In addition, where the information was originally published by someone other than the person to whom it relates, the secondary publisher has a defence if they had no reason to believe that the conditions mentioned in subsection (4) were not met in relation to that original publication.
306.Finally, a person who publishes information has a defence if they were not aware, and neither suspected nor had reason to suspect, that the information they published included any information to which the restriction in section 106C(1) applies.
307.Section 106D(7) to (9) make provision for how various elements of the possible defences in subsections (3) to (6) can be established.
Crown Application Anonymity for victims Section 106D – offence and defences