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Home > Reporting Restrictions in the Crown Courts |
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4. Discretionary Reporting Restrictions The Crown Court has power in appropriate cases to impose temporary or permanent restrictions on the media's reports. In general, the authorities stress the paramount importance of the open justice principle, the exceptional nature of any restrictions and the criteria safeguarding that principle which must be satisfied before any such reporting restriction can be imposed. Courts may need to consider the interaction of statutory provisions with common law powers and Articles 6 and 10 of the European Convention on Human Rights. 4.1. Protection of young persons and adult witnesses The Youth Justice and Criminal Evidence Act 1999 (when in force) provides for revised restrictions ( Endnote 2 )on the reporting of the identity of young persons involved in criminal proceedings and a new power to restrict reporting in respect of certain adult witnesses.
Section 44 of the 1999 Act (if brought into force in full) would automatically prevent reporting of any matter which might lead the public to identify a person under 18 as a potential defendant, victim or witness as soon as a criminal investigation has begun. This restriction lasts only until criminal proceedings begin. Any criminal court may dispense with the restrictions to any extent that it specifies if satisfied that it is necessary in the interests of justice to do so. There is a right of appeal from a magistrates court's decision in this regard to the Crown Court. It should be noted that the Home Office has made clear that
it has no current intention to implement these provisions in
respect of the identification of young witnesses and victims.
Section 45 of the 1999 Act gives a power to the court to give a direction restricting reporting of any matter which might lead the public to identify a person under 18 as a defendant, victim or witness in criminal proceedings. In contrast to the investigation stage, this power is not automatic but at the discretion of the court. The power should not be exercised as a matter of routine but the court should balance the general requirement for open justice with the need to protect young people involved in the proceedings. The court is required by subsection 6 to have regard to the welfare of the young person. The restriction can only be made under this section until the person reaches the age of 18. The court may at the time of giving a reporting restriction direction, or subsequently qualify the direction to any extent by 'an excepting direction' if either it is necessary in the interests of justice, or the effect of the direction is to impose a substantial and unreasonable restriction on the reporting of proceedings and it is in the public interest to remove or relax the restriction. [The public interest element is dealt with below at (iii)] An excepting direction cannot be given by reason of the fact that the proceedings have been determined in any particular way or have been abandoned. However, in the case of a defendant the fact that he has been convicted and that there is to be an appeal with some prospect of success which may result in a retrial may be a basis for making an excepting direction until the proposed appeal is disposed of when the judge might otherwise have considered revoking the original direction. The Divisional Court has made clear that the possibility of a retrial is 'a matter of very great importance in considering revoking directions in such circumstances' ( Endnote 3 ). There is no power to impose restrictions to prevent identification of children other than the defendant, a victim or a witness, e.g. the siblings of the defendant or a victim. Under the old legislation, it was held that there was no power to make an order to prevent identification of a deceased child. This would appear to apply equally under the new law. In a number of cases at first instance, the court has considered that it is a very relevant consideration that a child victim was a baby or very young so that any adverse publicity was likely to have been a thing of the past before the child would even be aware of it. Guidance under the old law as to whether a reporting restriction
prohibiting a young defendant from being identified should be
lifted where an appeal is proposed was given by the Court of
Appeal in R v Manchester Crown Court ex parte H and D [2000]
1 Cr. App. R. 262.
Section 46 of the 1999 Act gives the court power to restrict reporting about certain adult witnesses (other than the accused) in criminal proceedings on the application of any party during the lifetime of the witness. An adult witness is eligible for protection if the quality of his evidence or his co-operation with the preparation of the case is likely to be diminished by reason of fear or distress in connection with identification by the public as a witness. The court may make a reporting restriction direction in respect of such a person if the making of such an order is likely to improve the quality of the evidence of the witness or his co-operation in the preparation. The court must have regard to:
The court must also consider whether the making of a reporting direction would be in the interests of justice and consider the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of proceedings. Strangely it does not seem possible to give a reporting restriction order in respect of a witness under 18 that will last beyond his 18th birthday even in a case where the court would make a lifetime direction in relation to an adult. Excepting directions can be given and the directions may be
revoked or varied at any stage either by the court or an appellate
court, under similar provisions relating to those under 18. (See
above).
Breach of reporting directions is a summary offence under section
49 of the 1999 Act. Prosecution requires the consent of the Attorney
General. A statutory defence is provided under section 50(1)
that the person charged was not aware, and neither suspected
nor had reason to suspect, that the publication included the
matter or report in question. Section 50(7) contains a defence
of the witness's consent when the restriction applies to an adult
witness ( Endnote 4 ). A restriction direction prevents publication of any matter leading to identification but specifically name and address, any school or educational establishment attended, place of work and photographs (still or moving) if they are likely to lead members of the public to identify the person as having been involved in the offence. In determining whether something is in the public interest,
the court must have regard to the open reporting of crime, the
open reporting of matters relating to human health or safety
and the prevention and exposure of miscarriages of justice as
well as to the welfare of the person in relation to whom the
restriction would apply and views such a person, or in the case
of a person under 16 his parent or other appropriate person,
may have expressed. The provisions of sections 45 and 46 of the Act do not apply
to proceedings commenced before the coming into force of the
sections. Section 47 of the 1999 Act prohibits the reporting of special
measures directions under section 19 and directions which prohibit
the accused from conducting cross-examination. The automatic
ban applies during the trial, but the court may order that the
restrictions do not apply in whole or in part.
4.2. Names and other matters withheld in court Under section 11 of the Contempt of Court Act 1981, in any case where a court (having the power to do so) allows a name or other matter to be withheld from the public in proceedings before it, it may give such directions prohibiting the publication of the name or other matter in connection with the proceedings, as appear to be necessary for the purpose for which it was withheld. The court must have, at common law, the power to depart from the open justice principle. For example, it cannot make a section 11 order to prohibit publication of material previously given out in open court in those proceedings. Applications for section 11 orders may therefore be heard in camera. The Court of Appeal and Divisional Court have considered a range of cases where orders prohibiting identification or publication of identifying details, such as an address, have been sought in respect of defendants, witnesses, including victims, and claimants. Consistent with the general requirement of open justice, the Court's prime consideration should be the administration of justice and whether it is satisfied that failure to make an order would frustrate or impede it. The Court has the discretion to hear representations from the media or their legal representatives as to the making, variation or lifting of a section 11 order. The media may appeal formally against a Crown Court order to the Court of Appeal under section 159 of the Criminal Justice Act 1988. The order should be committed to writing by the Crown Court judge personally or by the clerk to the court under his direction and a permanent record kept. It should state its precise scope, the time at which it will cease to have effect, if appropriate, and the specific purpose in making the order. The press should be given notice that an order has been made and court staff should be prepared to answer any inquiry about a specific case (see Practice Direction (Contempt: Reporting Restrictions) [1982]1 WLR 1475). Court Business Rules also suggest prominent display of the notice and insertion into the Daily list. Where material might be withheld from the public, it is possible to use other means which represent a lesser derogation from the open justice principle e.g. postponement orders under section 4(2) of the Contempt of Court Act 1981 if the relevant requirements are satisfied. The court has the power to permit some evidence to be submitted in writing rather than read aloud (e.g. medical reports submitted for sentencing consideration). Lord Bingham C.J. has given guidance that addresses of witnesses,
whether for the prosecution or the defence, should only be given
in open court with the leave of the court where the address is
necessary for evidential purposes. 4.3. Postponing prejudicial contemporaneous reports of proceedings Under section 4(2) of the Contempt of Court Act 1981, the Crown Court has power in certain restricted circumstances to order that publication of reports of part or all of the proceedings held in open court be postponed for so long as necessary, where such a postponement is necessary for avoiding a substantial risk of prejudice to the administration of justice in those or other proceedings. Under section 4(2), Courts should consider whether publication would create a substantial risk of prejudice to the administration of justice and whether postponement of publication of a fair and accurate report of part or the whole of the proceedings which have been held in open court is necessary to avoid that risk. The court should only exercise its discretion to make an order after weighing the competing interests of open justice and fair trial. The courts have suggested that where possible the question of any imposition of reporting restrictions are best dealt with in advance of trial. The Crown Court has discretion to invite representations from the media or their legal representatives as to whether an order should be made, varied or lifted. It may make a temporary order to restrict publication pending its hearing to determine whether an order should be made. The media has the formal right to appeal against the Crown Court's imposition of an order under section 159 of the Criminal Justice Act 1988. The Practice Direction (Contempt of Court Act 1981) ( Endnote 5 ) requires that the order must be committed to writing either by the judge or by the clerk under his supervision. It must be formulated in precise terms and must state (a) its precise scope, (b) the time at which it shall cease to have effect, if appropriate, and (c) the specific purpose of making the order. It may be appropriate for the judge to make clear whether and
to what extent the terms of the order can be published.
4.4. Postponing reports of derogatory assertions made in pleas in mitigation Section 58 of the Criminal Procedure and Investigations Act 1996 gives a Crown Court determining sentence following conviction or on appeal against a sentence imposed by the magistrates power to postpone reporting of derogatory assertions about a named or identified person, if believed on substantial grounds to be false or irrelevant, newly made in mitigation and sentencing appeals and reviews. The section does not apply if the assertions have previously been made during the trial or at other proceedings relating to the offence. An interim order can be made as soon as the assertion has been made. A final order must be made as soon as reasonably practicable after the sentence is passed and can last for 12 months. The Court can revoke orders of its own motion, or after application. Home Office Circular 24/3/1997 suggests that the media and other third parties can make applications, perhaps by written submission. The media can formally appeal against an interim or final order made by the Crown Court, under section 159 of the Criminal Justice Act 1988. The Home Office Circular gives guidance to court staff on the
prompt notification of the media when an order has been made,
the display and content of notices on court premises and availability
of more detailed information, the entry into the court record
of the dates on which the order commences and ceases to have
effect, its statutory basis, whether interim or final, names
of the defendant and the third party protected, and the derogatory
assertions. 5. Other Restrictions on Reporting 5.1. Unauthorised recording of court proceedings The court has the discretion to permit tape recordings, which
would otherwise constitute contempt. (Contempt of Court Act 1981,
section 9, Practice Direction (Tape Recorders) [1981] 1 WLR 1526).
It is an offence to take photographs or make sketches or attempt
to do so in court, in respect of the judge, witness or party
if in the court room, court building or court precincts. (Criminal
Justice Act 1925 section 41) The court can issue guidance on
the extent of the precincts of the court buildings e.g. by way
of a map. It is a contempt of court to publish a report of a jury's deliberations
(Contempt of Court Act 1981 section 8). In some instances referred to above there is a requirement that a restriction order should be committed to writing by the judge personally or by the clerk under his supervision. Good practice should require that this is done whenever a discretionary order is made to ensure that the written order is in the precise form required by the judge. There will be cases where the court will be assisted before making an order by receiving either written or oral representations from the media. Factors known to the media may not be apparent from the papers and neither the prosecution nor the defence may be aware of them or have any particular interest in advancing them. It is sensible always to consider inviting such representations. This practice was encouraged by the Divisional Court in R v Teesdale and Wear Valley Justices ex parte M (7 February 2000). When a discretionary restriction order is made, it is clearly desirable that the media are given every assistance to comply with it. A judge may, therefore, think it helpful to say that if there are any particular problems arising from the making of the order which the media wish to raise in a written note, further guidance will be given in open court. Every court should have a proper procedure for ensuring that adequate steps are taken to draw any discretionary restriction order to the attention of media representatives who may not have been in court when the order was made and a judge should ensure that the procedure has been followed. Particular problems may arise where an order restricts publication of the identity of a victim or witness, and different reports, each complying with the requirement not to identify the victim or witness provide information which when put together makes the restricted identification clear. For example, if one report refers to an unnamed defendant having been convicted of rape of his daughter, and another report names the defendant but does not identify the relationship between the defendant and the witness. However, newspapers, magazines, broadcasters and their regulators have aligned their respective codes so that the media adopt a common approach which avoids such problems when reporting sexual offences (see Code of Practice upheld by the Press Complaints Commission, BBC Producers Guidelines, Independent Television Commission Programme Code, Radio Authority Programme Code). Media organisations may also agree to follow the same approach in reporting other offences involving children. This enables identification of the defendant by name but requires that no details should be given of any relationship which would link the offence to the alleged victim or otherwise identify the victim or the witness. It is recognised that this restriction may handicap the reporting of proceedings but the uniform approach protects the victim or the witness in the way required by the court. Since reports may already have appeared before the case reaches the Crown Court, the court should be very slow to interfere with this agreed practice (even where interference is possible - see R v Southwark Crown Court ex p. Godwin [1991] 3 All ER 818) since it may result in the sort of identification that the agreement is designed to prevent. Article 6 (right to a fair hearing), article 8 (right to respect
for private and family life) and article 10 (right to freedom
of expression) of the European Convention on Human Rights may
need to be considered. Section 12 of the Human Rights Act 1998
making provision for protection of journalistic and literary
material against prior restraint does not apply to criminal proceedings.
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