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Home > Reporting Restrictions in the Crown Courts |
| Foreword |
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By the Senior Presiding Judge I am happy to introduce this guidance to Reporting Restrictions in the Crown Court. As judges we are fully aware of the principles of open justice and the reasons why justice should be administered in public where both the process, and the results, are open to scrutiny. The responsibility for accurately reporting these matters to the community at large is performed by representatives of the media. Without their efforts, whatever the theory, in practice the process would become closed. As journalists themselves readily understand, the principle is not absolute. Statutory restrictions have been imposed on the right to report specific parts of the process, and there are a number of areas where the judge has the power, in the exercise of his discretion in the interests of justice, to make similar orders. This branch of the law has not been immunised from the contemporary trend towards increased complexity which seems to characterise so many aspects of the legal process. As a result a degree of uncertainty has developed about whether, and in what circumstances, reporting restrictions apply. More aggravating still, there seems to be no guide, readily accessible both to judges and to journalists, in which the relevant principles are collected and digested. This guidance represents the culmination of a joint effort by representatives of the media (The Society of Editors and The Newspaper Society) and the judiciary to produce useful practical information to be made available to judges in the Crown Court and, in an identical edition, to journalists, editors and representatives of the media. Properly used, it should serve to reduce those niggling irritations that can sometimes arise through misunderstanding and uncertainty, and ensure the continuing application of the principle of open justice. I am very grateful to Bob Satchwell of The Society of Editors and Santha Rasaiah, Head of Legal and Regulatory Affairs at The Newspaper Society, and to Lord Justice Kay for the close collaboration which has led to the preparation and distribution of the guidance, which will, I am sure, prove invaluable to everyone who uses it. The Right Hon Lord Justice Judge
This outline of reporting restrictions relating to criminal proceedings in the Crown Court results from a joint initiative between the Senior Presiding Judge, the Judicial Studies Board, the Lord Chancellor's Department and media organisations. It is designed to help promote greater understanding of problems in balancing the administration of justice and the need for openness in the courts to allow the media to inform the public. There will be occasions when the principles of open justice and the right of the media to report require to be restricted in order to ensure fair trials or the protection of those who are vulnerable, such as children. The media recognises this need and their own codes of practice encourage responsible reporting to the extent of urging restraint even when the law allows publication. A proper balance of the need for openness and conflicting considerations requires that the court should exercise the utmost care before making such an order by ensuring that it has power to make the order and that the order is necessary, being prepared to listen to representations made by the media when there is a feeling that restrictions unnecessarily interfere with open justice or make sensible reporting difficult. The court should also explain its decision clearly and ensure that the order is correctly drawn and brought to the attention of the media.
The general rule is that the administration of justice must be done in public. The media is in court to report the proceedings to the public, the majority of whom will be unable to be there in person but who have the right to be informed as to what has occurred. Accordingly, unless there is good reason, nothing should be done to prevent the publication to the wider public of fair and accurate reports of the proceedings by the media. The open justice principle is clearly recognised by the courts and by Parliament. The common law has been supplemented in this respect by statute. The media has been given statutory rights to attend certain proceedings from which the general public is excluded; statutory defences in libel and contempt have been given to fair and accurate reports of proceedings; statutory rights have been provided to make representations against the imposition of restrictions on reporting or public access to proceedings. The role of the media is recognised in the case law under the European Convention on Human Rights. There are circumstances in which the court will have to consider departing from this general principle. In some cases, statute automatically restricts the giving of certain details in reports of court proceedings. Common law powers and statutory restrictions enable the court in other circumstances to exclude the public and the media and to impose temporary or permanent restrictions on the media's reports of court proceedings. If the necessary balance between the general principle and properly competing interests is to be achieved, a clear understanding of the legal basis for the imposition of restrictions is necessary both by the judiciary and the media. This guide seeks to highlight those areas in which consideration of restrictions are likely to apply in the Crown Court in dealing with criminal cases.
2. Hearings from which the Public are Excluded In general, court proceedings must be held in open court, so that public and press have the right to attend the proceedings. The court does have the inherent power to regulate its own proceedings. However, departure from the open justice principle is exceptional. It must be justified as necessary for the avoidance of the frustration of the administration of justice, or the rendering of it impracticable. Statutory provisions enable the Crown Court to sit in camera and in chambers in certain circumstances. The Crown Court Rules 1982 as amended prescribe the formal procedure for application for a trial to be held in camera, for reasons of national security or protection of the identity of a witness or another. The media may make representations and can formally appeal under s.159 Criminal Justice Act 1988. Adjournment into Chambers should not be automatic and proceedings should be adjourned into open court as soon as exclusion of the public is unnecessary. The Court has the discretion to exclude the public but not bona fide representatives of newspapers, broadcasters and news agencies during the testimony of witnesses aged under 18 in any proceedings relating to an offence against, or conduct contrary to decency or morality. At common law, the court can exclude the public but retain media representatives when considering exhibits in obscene publications trials. If the court has the power to sit in camera, it can employ less restrictive derogations from open justice which would protect the administration of justice. This might involve reporting restrictions or enabling information to be withheld from being given out in open court. However, these are also exceptional measures. Section 25 of the Youth Justice and Criminal Evidence Act 1999 (when in force) permits the court to exclude persons of any description from the court during the evidence of a child or vulnerable adult witness in cases relating to a sexual offence or where there are grounds for believing that the witness has been or may be intimidated. If the media are to be excluded, one nominated representative must be permitted to remain. Article 6 and Article 10 of the European Convention on Human
Rights are relevant considerations. [Archbold 2000: 4-3 to 4-13
(Hearings in Open Court); 25-319, 25-321, 25-337 (Official Secrets
Act); 1-230, 2-153, 2-158 (Hearings in Chambers);
3. Automatic Reporting Restrictions There are a number of automatic reporting restrictions on proceedings held in open court. The existence of an automatic restriction may render some discretionary restrictions unnecessary, (e.g. there is no need to make a discretionary order in respect of a child victim of a sexual offence because the automatic restrictions as to the identity of any victim of a sexual offence apply). It may be of assistance in some cases for the judge to remind the media of any automatic restriction and to consider whether any guidance will assist the media to keep within such automatic restrictions. The statutory provisions may give the court power to lift or vary the restrictions in specified circumstances on its own motion or after hearing application from the parties or media. 3.1. Victims of sexual offences Once Schedule 2 of the Youth Justice and Criminal Evidence Act 1999 is brought into force, all restrictions on reporting matters relating to the identity of complainants in sexual offences will be contained in the Sexual Offences (Amendment) Act 1992 as amended (endnote) The 1992 Act as amended imposes a lifetime ban on reporting the identity of the alleged victim once an allegation that an offence has been committed is made and this continues after someone has been charged. The offences to which this automatic restriction applies are set out in section 2 of the 1992 Act and include rape, indecent assault, indecency with children and the vast majority of other sexual offences [Archbold 2000: 20-267]. Since the restriction is mandatory no order of the court is required even in the case of a child victim. A person charged with a sexual offence covered by the restriction may apply to the court to direct that the restriction shall not apply if such a direction is required to induce potential witnesses to come forward and the conduct of the defence is likely to be substantially prejudiced if no such direction is given. The trial judge has the discretion to lift or relax the reporting restrictions if their effect is to impose a substantial and unreasonable restriction on reporting the proceedings at trial and it would be in the public interest to do so. The victim or alleged victim may in writing agree to the restriction
being lifted. 3.2. Rulings at pre-trial hearings Automatic restrictions under section 41 and 42 of the Criminal Procedure and Investigations Act 1996 prevent reporting of all rulings made at pre-trial hearings together with orders for discharge and variation of such rulings and application proceedings for rulings and orders. The restrictions apply until the trial of all defendants in
the case has concluded. However, the restrictions can be lifted
in whole or in part, provided that the court is satisfied, after
hearing the representations of all the accused where any of them
object, that it is in the interests of justice to do so. Reporting restrictions are imposed in respect of preparatory hearings. Section 37 and 38 of the Criminal Procedure and Investigations Act 1996 provide for restrictions where the case is a long or complex one and section 11 of the Criminal Justice Act 1987 makes provision in cases of serious fraud. The Crown Court, Court of Appeal and House of Lords can lift the restrictions in whole or in part, although, if any of the accused object, the court has to be satisfied that it is in the interests of justice to do so after hearing the representations of each accused. If the restrictions are lifted, the ban continues to apply to the accused's objections to and representations against their lifting. Otherwise, the restrictions end on conclusion of the trial of the accused or the last of the accused to be tried. Until then, in Great Britain newspapers, periodicals, and broadcasters can only publish or include one or more of the following matters in their reports of the proceedings: the identity of the court and the name of the judge; the names, ages, home addresses and occupations of the accused and witnesses; the offence or offences with which the accused is or are charged or a summary of them; the names of counsel and solicitors in the proceedings; where the proceedings are adjourned, the date and place to which they are adjourned; any arrangements as to bail; whether legal aid was granted to the accused or any of the accused. In serious fraud cases, relevant business information may also be given including the name and address of any business which the accused was carrying on, on his own account; name and address of any firm of which he was a partner or by which he was engaged; name, registered or principal office, or working address of the accused, of any company of which he was a director, or by which he was otherwise engaged at the relevant time. The addresses that may be published or included in a relevant
programme are addresses at any relevant time, and at the time
of their publication or inclusion in a relevant programme; 'relevant
time' here means a time when events giving rise to the charges
to which the proceedings relate occurred. 3.4. Dismissal proceedings where there has been no committal Similar restrictions apply to unsuccessful applications for
dismissal in cases for trial in the Crown Court where there has
been no committal proceeding. These cover serious fraud cases
(s. 11 Criminal Justice Act 1987); charges alleging sexual offences
or offences involving violence or cruelty against children (s.
53; Sched. 6 para.6 Criminal Justice Act 1991); and indictable
only cases automatically sent for trial (Sched. 3 paragraph 3
of the Crime and Disorder Act 1998).
3.5. Indecent material calculated to injure public morals Section 1 (l)(a) of the Judicial Proceedings (Regulation of Reports) Act 1926 prohibits the publication in relation to any judicial proceedings of any indecent matter or indecent medical, surgical or physiological details which would be calculated to injure public morals. 3.6. Proceedings in the absence of the jury while the trial continues At common law, it is a contempt of court to publish any material
which interferes with the course of justice as a continuing process
in criminal proceedings. The reporting of that which transpires
at times when the jury are asked to withdraw, at any stage before
the jury returns its verdict, is therefore likely to be a contempt
of court since the report may well defeat the whole purpose of
the jury withdrawing. |
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